UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or
13(e)(1)
of the Securities Exchange Act of 1934
STEVEN MADDEN, LTD.
(Name
of Subject Company (Issuer))
STEVEN MADDEN, LTD.
(Name
of Filing Person (Issuer))
Common Stock, par value $0.0001 per share
(including the associated Preferred Stock Purchase Rights issued under the
Rights Agreement)
(Title
of Class of Securities)
556 269 108
(CUSIP
Number of Class of Securities)
Jamieson A. Karson
Steven Madden, Ltd.
52-16 Barnett Avenue
Long Island City, New York 11104
(718) 446-1800
(Name, address and telephone number of person
authorized to receive notices
and communications on behalf of Filing Persons)
Copy to:
Allan R. Williams, Esq.
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
(212) 969-3000
CALCULATION OF FILING FEE
|
|
|
|
Transaction Valuation* |
Amount of Filing Fee** |
|
$52,000,000 |
$2,044 |
|
|
|
|
|
|
* |
Estimated for purposes of calculating the amount of the filing fee only. This amount is based on the purchase of |
|
2,600,000 shares of common stock at the maximum tender offer price of $20.00 per share. |
||
|
|
||
|
|
** |
The amount of the filing fee, calculated in accordance with Rule 0-11 under the Securities Exchange Act of |
|
1934, as amended, equals $39.30 per million of the value of the transaction. |
||
|
|
|
|
|
|
o |
Check the box if any part of the filing fee is offset as provided by Rule 0-11(a)(2) and identify the filing with |
|
which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
||
|
|
|
|
Amount Previously Paid: |
Filing Party: |
|
Form or Registration No.: |
Date Filed: |
|
|
|
|
|
|
o |
Check the box if the filing relates solely to preliminary communications made before the commencement of a |
|
tender offer. |
||
|
|
|
|
|
|
Check the appropriate boxes below to designate any transaction to which the statement relates: |
|
|
|
|
|
|
|
o |
third-party tender offer subject to Rule 14d-1. |
|
|
x |
issuer tender offer subject to Rule 13e-4. |
|
|
o |
going private transaction subject to Rule 13e-3. |
|
|
o |
amendment to Schedule 13D under Rule 13d-2. |
|
|
|
|
|
|
Check the following box if the filing is a final amendment reporting the results of the tender offer: o |
|
INTRODUCTION
This Tender Offer Statement on Schedule TO relates to the offer by Steven Madden, Ltd., a Delaware corporation (the “Company”), to purchase up to 2,600,000 shares of its common stock, par value $0.0001 per share, including the associated preferred stock purchase rights (the “rights”) issued under the Rights Agreement between the Company and American Stock Transfer & Trust Company as Rights Agent, dated as of November 14, 2001, at a price not greater than $20.00 nor less than $16.50 per share, net to the seller in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase dated February 20, 2008 (the “Offer to Purchase”), a copy of which is attached hereto as Exhibit (a)(1)(A), and in the related Letter of Transmittal (the “Letter of Transmittal”), a copy of which is attached hereto as Exhibit (a)(1)(B). This Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) of the Securities Exchange Act of 1934, as amended. The information contained in the Offer to Purchase and the related Letter of Transmittal is incorporated herein by reference in response to all of the items of this Schedule TO, as more particularly described below.
Item 1. Summary Term Sheet.
The information set forth under “Summary Term Sheet” in the Offer to Purchase is incorporated herein by reference.
Item 2. Subject Company Information.
(a) The name of the issuer is Steven Madden, Ltd., a Delaware corporation, and the address of its principal executive office is 52-16 Barnett Avenue, Long Island City, New York 11104. The telephone number of its principal executive office is (718) 446-1800.
(b) The information set forth under “Introduction” in the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase under Section 8 (“Price Range of the Shares”) is incorporated herein by reference.
Item 3. Identity and Background of Filing Person.
(a) The Company is the filing person. The Company’s address and telephone number are set forth in Item 2 above. The information set forth in the Offer to Purchase under Section 11 (“Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) is incorporated herein by reference.
Item 4. Terms of the Transaction.
(a) The following sections of the Offer to Purchase contain a description of the material terms of the transaction and are incorporated herein by reference:
|
|
|
|
|
|
|
“Summary Term Sheet”; |
|
|
|
|
|
|
|
“Introduction”; |
|
|
|
|
|
|
|
Section 1 (“Terms of the Offer”); |
|
|
|
|
|
|
|
Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”); |
|
|
|
|
|
|
|
Section 3 (“Procedures for Tendering Shares”); |
|
|
|
|
|
|
|
Section 4 (“Withdrawal Rights”); |
|
|
|
|
|
|
|
Section 5 (“Purchase of Shares and Payment of Purchase Price”); |
|
|
|
|
|
|
|
Section 6 (“Conditional Tender of Shares”); |
|
|
|
|
|
|
|
Section 7 (“Conditions of the Tender Offer”); |
|
|
|
|
|
|
|
Section 9 (“Source and Amount of Funds”); |
|
|
|
|
|
|
|
Section 10 (“Information about Steven Madden, Ltd.”); |
|
|
|
|
|
|
|
Section 11 (“Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”); |
|
|
|
|
|
|
|
Section 14 (“United States Federal Income Tax Consequences”); and |
|
|
|
|
|
|
|
Section 15 (“Extension of the Tender Offer; Termination; Amendment”). |
(b) The information in the “Introduction” to the Offer to Purchase and in Section 11 of the Offer to Purchase (“Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) is incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(e) The information set forth in the Offer to Purchase under Section 11 (“Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) is incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a), (b) and (c)(1)-(10) The information set forth in the Offer to Purchase under Section 2 (“Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans”) is incorporated herein by reference.
Item 7. Source and Amount of Funds or Other Consideration.
(a) The information set forth in the Offer to Purchase under Section 9 (“Source and Amount of Funds”) is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase under Section 7 (“Conditions of the Tender Offer”) is incorporated herein by reference.
(d) Not applicable.
Item 8. Interest in Securities of the Subject Company.
(a) and (b) The information set forth in the Offer to Purchase under Section 11 (“Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”) is incorporated herein by reference.
Item 9. Persons/Assets, Retained, Employed, Compensated or Used.
(a) The information set forth in the Offer to Purchase under Section 16 (“Fees and Expenses”) is incorporated herein by reference.
Item 10. Financial Statements.
Not applicable.
Item 11. Additional Information.
(a) The information set forth in the Offer to Purchase under Section 10 (“Information about Steven Madden, Ltd.”), Section 11 (“Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares”), Section 12 (“Effects of the Tender Offer on the Market for Shares; Registration under the Exchange Act”) and Section 13 (“Legal Matters; Regulatory Approvals”) is incorporated herein by reference. To the knowledge of the Company, no material legal proceedings relating to the tender offer are pending.
(b) The information set forth in the Offer to Purchase and the related Letter of Transmittal, copies of which are filed as Exhibits (a)(1)(A) and (a)(1)(B) hereto, respectively, as each may be amended or supplemented from time to time, is incorporated herein by reference.
Item 12. Exhibits.
|
|
|
|
|
|
EXHIBIT |
|
DESCRIPTION |
|
|
|
|
|
|
|
(a)(1)(A)* |
|
Offer to Purchase dated February 20, 2008. |
|
|
|
|
|
|
|
(a)(1)(B)* |
|
Letter of Transmittal. |
|
|
|
|
|
|
|
(a)(1)(C)* |
|
Notice of Guaranteed Delivery. |
|
|
|
|
|
|
|
(a)(1)(D)* |
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated February 20, 2008. |
|
|
|
|
|
|
|
(a)(1)(E)* |
|
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated February 20, 2008. |
|
|
|
|
|
|
|
(a)(1)(F)* |
|
Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. |
|
|
|
|
|
|
|
(a)(1)(G) |
|
The second paragraph under the caption “Company Outlook” contained in the Press Release announcing financial results for the quarter and the fiscal year ended December 31, 2007, dated February 19, 2008 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on February 19, 2008). |
|
|
|
|
|
|
|
(a)(1)(H) |
|
Press Release announcing the conclusion of strategic alternatives review process, dated February 19, 2008 (incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form 8-K filed with the Commission on February 19, 2008). |
|
|
|
|
|
|
|
(a)(1)(I)* |
|
Letter to stockholders of the Company from Jamieson A. Karson, Chairman and Chief Executive Officer, dated February 20, 2008. |
|
|
|
|
|
|
|
(d)(1) |
|
Rights Agreement, dated as of November 14, 2001, between the Company and American Stock Transfer & Trust Company, as Rights Agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Commission on November 16, 2001). |
|
|
|
|
|
|
|
(d)(2) |
|
The 1998 Stock Plan, approved and adopted on January 16, 1998 (incorporated by reference to Exhibit 10.2 to the Company’s Registration Statement on Form S-8 filed with the Commission on July 28, 1998). |
|
|
|
|
|
|
|
(d)(3) |
|
The 1999 Stock Plan, approved and adopted on March 15, 1999, amended as of March 20, 2000 and March 30, 2001 (incorporated by reference to Exhibit 10.A to the Company’s Registration Statement on Form S-8 filed with the Commission on July 26, 2004). |
|
|
|
|
|
|
|
(d)(4) |
|
The 2006 Stock Incentive Plan (the “Plan”), approved and adopted on May 26, 2006 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Commission on July 3, 2006). |
|
|
|
|
|
|
|
(d)(5) |
|
Form of Non-Qualified Stock Option Agreement (Chief Executive Officer) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(6) |
|
Form of Non-Qualified Stock Option Agreement (Employee without Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(7) |
|
Form of Non-Qualified Stock Option Agreement (Employee with Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(8) |
|
Form of Restricted Stock Agreement (Chief Executive Officer) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(9) |
|
Form of Restricted Stock Agreement (Employee without Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.6 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(10) |
|
Form of Restricted Stock Agreement (Employee with Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(11) |
|
Form of Restricted Stock Agreement under the Plan used for grants made to non-employee directors from March 2006 through May 2007, with a schedule setting forth the name of each of the recipients, the date of the grant and the number of shares (incorporated by reference to Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(12) |
|
Restricted Stock Agreement, dated March 24, 2006, between Jamieson A. Karson and the Company (incorporated by reference to Exhibit 10.9 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(13) |
|
Restricted Stock Agreement, dated March 27, 2007, between Jamieson A. Karson and the Company (incorporated by reference to Exhibit 10.10 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(14) |
|
Amendments to Restricted Stock Agreements, dated as of March 23, 2007, between Jamieson A. Karson and the Company (incorporated by reference to Exhibit 10.11 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(15) |
|
Restricted Stock Agreement, dated March 24, 2006, between Steven H. Madden and the Company (incorporated by reference to Exhibit 10.12 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(16) |
|
Restricted Stock Agreement, dated June 9, 2006, between Steven H. Madden and the Company (incorporated by reference to Exhibit 10.13 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(17) |
|
Restricted Stock Agreement, dated March 24, 2006, between Arvind Dharia and the Company (incorporated by reference to Exhibit 10.14 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(18) |
|
Restricted Stock Agreement, dated March 20, 2006, between Amelia Newton Varela and the Company (incorporated by reference to Exhibit 10.15 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(19) |
|
Restricted Stock Agreement, dated March 20, 2006, between Robert Schmertz and the Company (incorporated by reference to Exhibit 10.16 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(20) |
|
Restricted Stock Agreement, dated March 6, 2007, between Arvind Dharia and the Company (incorporated by reference to Exhibit 10.17 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(21) |
|
Restricted Stock Agreement, dated March 9, 2007, between Robert Schmertz and the Company (incorporated by reference to Exhibit 10.18 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(22) |
|
Restricted Stock Agreement, dated April 25, 2007, between Awadhesh Sinha and the Company (incorporated by reference to Exhibit 10.19 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(23) |
|
Non-Qualified Stock Option Agreement, dated May 16, 2007, between Jeffrey Silverman and the Company (incorporated by reference to Exhibit 10.20 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(24) |
|
Non-Qualified Stock Option Agreement, dated May 16, 2007, between Jeffrey Silverman and the Company (incorporated by reference to Exhibit 10.21 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
|
|
|
* |
Filed herewith. |
Item 13. Information Required by Schedule 13E-3.
Not applicable.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
|
|
|
|
|
Date: February 20, 2008 |
STEVEN MADDEN, LTD. |
|
|
|
|
|
|
|
By: /s/ Jamieson A. Karson |
|
|
|
|
|
|
|
Name: |
Jamieson A. Karson |
|
|
Title: |
Chairman and Chief Executive Officer |
Exhibit Index
|
|
|
|
|
|
EXHIBIT |
|
DESCRIPTION |
|
|
|
|
|
|
|
(a)(1)(A)* |
|
Offer to Purchase dated February 20, 2008. |
|
|
|
|
|
|
|
(a)(1)(B)* |
|
Letter of Transmittal. |
|
|
|
|
|
|
|
(a)(1)(C)* |
|
Notice of Guaranteed Delivery. |
|
|
|
|
|
|
|
(a)(1)(D)* |
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated February 20, 2008. |
|
|
|
|
|
|
|
(a)(1)(E)* |
|
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated February 20, 2008. |
|
|
|
|
|
|
|
(a)(1)(F)* |
|
Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. |
|
|
|
|
|
|
|
(a)(1)(G) |
|
The second paragraph under the caption “Company Outlook” contained in the Press Release announcing financial results for the quarter and the fiscal year ended December 31, 2007, dated February 19, 2008 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on February 19, 2008). |
|
|
|
|
|
|
|
(a)(1)(H) |
|
Press Release announcing the conclusion of strategic alternatives review process, dated February 19, 2008 (incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form 8-K filed with the Commission on February 19, 2008). |
|
|
|
|
|
|
|
(a)(1)(I)* |
|
Letter to stockholders of the Company from Jamieson A. Karson, Chairman and Chief Executive Officer, dated February 20, 2008. |
|
|
|
|
|
|
|
(d)(1) |
|
Rights Agreement, dated as of November 14, 2001, between the Company and American Stock Transfer & Trust Company, as Rights Agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Commission on November 16, 2001). |
|
|
|
|
|
|
|
(d)(2) |
|
The 1998 Stock Plan, approved and adopted on January 16, 1998 (incorporated by reference to Exhibit 10.2 to the Company’s Registration Statement on Form S-8 filed with the Commission on July 28, 1998). |
|
|
|
|
|
|
|
(d)(3) |
|
The 1999 Stock Plan, approved and adopted on March 15, 1999, amended as of March 20, 2000 and March 30, 2001 (incorporated by reference to Exhibit 10.A to the Company’s Registration Statement on Form S-8 filed with the Commission on July 26, 2004). |
|
|
|
|
|
|
|
(d)(4) |
|
The 2006 Stock Incentive Plan (the “Plan”), approved and adopted on May 26, 2006 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Commission on July 3, 2006). |
|
|
|
|
|
|
|
(d)(5) |
|
Form of Non-Qualified Stock Option Agreement (Chief Executive Officer) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(6) |
|
Form of Non-Qualified Stock Option Agreement (Employee without Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(7) |
|
Form of Non-Qualified Stock Option Agreement (Employee with Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(8) |
|
Form of Restricted Stock Agreement (Chief Executive Officer) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(9) |
|
Form of Restricted Stock Agreement (Employee without Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.6 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(10) |
|
Form of Restricted Stock Agreement (Employee with Employment Agreement) under the Plan, as adopted October 30, 2007 (incorporated by reference to Exhibit 10.7 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(11) |
|
Form of Restricted Stock Agreement under the Plan used for grants made to non-employee directors from March 2006 through May 2007, with a schedule setting forth the name of each of the recipients, the date of the grant and the number of shares (incorporated by reference to Exhibit 10.8 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(12) |
|
Restricted Stock Agreement, dated March 24, 2006, between Jamieson A. Karson and the Company (incorporated by reference to Exhibit 10.9 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(13) |
|
Restricted Stock Agreement, dated March 27, 2007, between Jamieson A. Karson and the Company (incorporated by reference to Exhibit 10.10 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(14) |
|
Amendments to Restricted Stock Agreements, dated as of March 23, 2007, between Jamieson A. Karson and the Company (incorporated by reference to Exhibit 10.11 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(15) |
|
Restricted Stock Agreement, dated March 24, 2006, between Steven H. Madden and the Company (incorporated by reference to Exhibit 10.12 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(16) |
|
Restricted Stock Agreement, dated June 9, 2006, between Steven H. Madden and the Company (incorporated by reference to Exhibit 10.13 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(17) |
|
Restricted Stock Agreement, dated March 24, 2006, between Arvind Dharia and the Company (incorporated by reference to Exhibit 10.14 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(18) |
|
Restricted Stock Agreement, dated March 20, 2006, between Amelia Newton Varela and the Company (incorporated by reference to Exhibit 10.15 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(19) |
|
Restricted Stock Agreement, dated March 20, 2006, between Robert Schmertz and the Company (incorporated by reference to Exhibit 10.16 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(20) |
|
Restricted Stock Agreement, dated March 6, 2007, between Arvind Dharia and the Company (incorporated by reference to Exhibit 10.17 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(21) |
|
Restricted Stock Agreement, dated March 9, 2007, between Robert Schmertz and the Company (incorporated by reference to Exhibit 10.18 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(22) |
|
Restricted Stock Agreement, dated April 25, 2007, between Awadhesh Sinha and the Company (incorporated by reference to Exhibit 10.19 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(23) |
|
Non-Qualified Stock Option Agreement, dated May 16, 2007, between Jeffrey Silverman and the Company (incorporated by reference to Exhibit 10.20 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
|
|
|
|
|
|
(d)(24) |
|
Non-Qualified Stock Option Agreement, dated May 16, 2007, between Jeffrey Silverman and the Company (incorporated by reference to Exhibit 10.21 to the Company’s Quarterly Report on Form 10-Q filed with the Commission on November 9, 2007). |
|
Offer to Purchase for Cash
by
STEVEN MADDEN, LTD.
of
Up to 2,600,000 Shares of its Common Stock
(including the associated Preferred Stock Purchase Rights issued under
the Rights Agreement)
at a Purchase Price Not Greater Than $20.00 nor Less Than $16.50 Per Share
|
|
|
|
|
|
|
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE |
|
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MARCH 18, 2008 |
|
UNLESS THE OFFER IS EXTENDED. |
|
|
|
|
Steven Madden, Ltd., a Delaware corporation (the “Company,” “Madden,” “we” or “us”), is offering to purchase up to 2,600,000 shares of its common stock, par value $0.0001 per share (the “common stock”), including the associated preferred stock purchase rights (the “rights”) issued under the Rights Agreement between the us and American Stock Transfer & Trust Company as Rights Agent, dated as of November 14, 2001, at a price not greater than $20.00 nor less than $16.50 per share, net to the seller in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions described in this Offer to Purchase and the related Letter of Transmittal (which together, as they may be amended and supplemented from time to time, constitute the “Offer”). Unless the context otherwise requires, all references to shares shall refer to the common stock of the Company and shall include the rights; and unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
On the terms and subject to the conditions of the Offer, we will determine a single per share price, not greater than $20.00 nor less than $16.50 per share, net to the seller in cash, less any applicable withholding taxes and without interest, that we will pay for shares properly tendered and not properly withdrawn in the Offer, taking into account the total number of shares tendered and the prices specified by tendering stockholders. After the Offer expires, we will look at the prices chosen by stockholders for all of the shares properly tendered. We will then select the lowest purchase price within the price range specified above that will allow us to buy 2,600,000 shares. If fewer shares are properly tendered, we will select the price that will allow us to buy all the shares that are properly tendered and not properly withdrawn. All shares we acquire in the Offer will be acquired at the same purchase price regardless of whether the stockholder tendered at a lower price. We will purchase only shares properly tendered at prices at or below the purchase price we determine and not properly withdrawn. However, because of the “odd-lot” priority, proration and conditional tender provisions described in this Offer to Purchase, we may not purchase all of the shares tendered even if stockholders tendered at or below the purchase price if more than the number of shares we seek are properly tendered. We will return shares tendered at prices in excess of the purchase price that we determine and shares that we do not purchase because of proration or conditional tenders to the tendering stockholders at our expense promptly after the Offer expires. See Section 3.
Subject to certain limitations and legal requirements, we reserve the right to accept for payment, according to the terms and conditions of this Offer, up to an additional 2% of our outstanding shares (or 402,360 shares). See Sections 1 and 15.
The Offer is not conditioned upon any minimum number of shares being tendered. The Offer is, however, subject to conditions. See Sections 7.
The shares are traded on The NASDAQ Global Select Market (“NASDAQ”) under the symbol “SHOO.” On February 15, 2008, the last full trading day before we announced our intention to make the Offer, the reported closing price of the shares on the NASDAQ was $16.78 per share. Stockholders are urged to obtain current market quotations for the shares. See Section 8.
Our Board of Directors (“Board”) has approved the Offer. However, none of Madden, our Board, the Depositary, or the Information Agent makes any recommendation to you as to whether to tender or refrain from tendering your shares or as to the purchase price or purchase prices at which you may choose to tender your shares. You must make your own decision as to whether to tender your shares and, if so, how many shares to tender and the price or prices at which you will tender them. In doing so, you should read carefully the information in this Offer to Purchase and the related Letter of Transmittal, including our reasons for making the Offer. See Section 2. The Offer will increase the proportional holdings of our directors and executive officers. After termination of the Offer, our directors and executive officers may, in compliance with applicable law, sell their shares in open market transactions at prices that may or may not be more favorable than the purchase price to be paid to our stockholders in the Offer. See Section 11.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of this transaction or passed upon the merits or fairness of the Offer or passed upon the adequacy or accuracy of the information contained in this Offer to Purchase. Any representation to the contrary is a criminal offense.
IMPORTANT
If you desire to tender all or any portion of your shares, you should either (1) (a) complete and sign the Letter of Transmittal in accordance with the instructions to the Letter of Transmittal, have your signature thereon guaranteed if Instruction 1 to the Letter of Transmittal so requires, mail or deliver the Letter of Transmittal, together with any other required documents, including the share certificates, to American Stock Transfer & Trust Company, the depositary for the Offer, or the Depositary, or (b) tender the shares in accordance with the procedure for book-entry transfer set forth in Section 3, or (2) request that your bank, broker, dealer, trust company or other nominee effect the transaction for you. If you have shares registered in the name of a bank, broker, dealer, trust company or other nominee, you must contact the nominee if you desire to tender those shares.
If you desire to tender shares and your certificates for those shares are not immediately available or the procedure for book-entry transfer cannot be completed on a timely basis, or time will not permit all required documents to reach the Depositary prior to the Expiration Time (as defined herein), your tender may be effected by following the procedure for guaranteed delivery set forth in Section 3.
If you wish to maximize the chance that your shares will be purchased at the purchase price determined by us, you should check the box in the section of the Letter of Transmittal captioned “Shares Tendered at Price Determined Pursuant to the Offer.” If you agree to accept the purchase price determined in the Offer, your shares will be deemed to be tendered at the minimum price of $16.50 per share. You should understand that this election may lower the purchase price and could result in the tendered shares being purchased at the minimum price of $16.50 per share.
If you have any questions regarding the Offer, please contact D.F. King & Co., Inc., the Information Agent for the Offer toll-free at (800) 901-0068. Additional contact information for the Information Agent is set forth on the back cover of this Offer to Purchase. Requests for additional copies of this Offer to Purchase, the related Letter of Transmittal or the Notice of Guaranteed Delivery may also be directed to the Information Agent.
We are not making the Offer to, and will not accept any tendered shares from, stockholders in any jurisdiction where it would be illegal to do so. However, we may, at our discretion, take any actions necessary for us to make this Offer to stockholders in any such jurisdiction.
We have not authorized any person to make any recommendation on our behalf as to whether you should tender or refrain from tendering your shares or as to the purchase price or purchase prices at which you may choose to tender your shares in the Offer. You should rely only on the information contained in this Offer to Purchase or to which we have referred you. We have not authorized anyone to provide you with information or to make any representation in connection with the Offer other than those contained in this Offer to Purchase or in the related Letter of Transmittal. If anyone makes any recommendation or gives any information or representation, you must not rely upon that recommendation, information or representation as having been authorized by us, the Information Agent or the Depositary.
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
|
1 |
|
||
|
|
|
|
|
|
8 |
|
||
|
|
|
|
|
|
9 |
|
||
|
|
|
|
|
|
11 |
|
||
|
|
|
|
|
|
11 |
|
||
|
Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans |
13 |
|
|
|
15 |
|
||
|
19 |
|
||
|
20 |
|
||
|
21 |
|
||
|
22 |
|
||
|
24 |
|
||
|
25 |
|
||
|
25 |
|
||
|
Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares |
26 |
|
|
|
Effects of the Tender Offer on the Market for Shares; Registration under the Exchange Act |
28 |
|
|
|
28 |
|
||
|
29 |
|
||
|
31 |
|
||
|
32 |
|
||
|
32 |
|
||
We are providing this summary term sheet for your convenience. The Company is at times referred to as “Madden,” “we,” “our” or “us.” We refer to the shares of our common stock, including the associated rights, as the “shares.” This summary term sheet highlights certain material information in this Offer to Purchase, but you should realize that it does not describe all of the details of the Offer to the same extent described in this Offer to Purchase. We urge you to read the entire Offer to Purchase and the related Letter of Transmittal because they contain the full details of the Offer. We have included references to the sections of this Offer to Purchase where you will find a more complete discussion where helpful.
Who is offering to purchase my shares?
Steven Madden, Ltd.
What is the Company offering to purchase?
We are offering to purchase up to 2,600,000 shares of our common stock, par value $0.0001 per share, including the associated rights. See Section 1.
What will the purchase price for the shares be and what will be the form of payment?
We are conducting the Offer through a procedure commonly called a modified “Dutch Auction.”
This procedure allows you to select the price (in multiples of $0.50) within a price range specified by us at which you are willing to sell your shares.
The price range for the Offer is $16.50 to $20.00 per share. After the Offer expires, we will look at the prices chosen by stockholders for all of the shares properly tendered. We will then select the lowest purchase price (in multiples of $0.50) that will allow us to buy 2,600,000 shares. If fewer shares are properly tendered, we will select the price that will allow us to buy all the shares that are properly tendered and not properly withdrawn.
If you wish to maximize the chance that your shares will be purchased, you should check the box of the section of the Letter of Transmittal captioned “Shares Tendered at Price Determined under the Tender Offer” indicating that you will accept the purchase price we determine. If you agree to accept the purchase price determined in the Offer, your shares will be deemed to be tendered at the minimum price of $16.50 per share. You should understand that this election may lower the purchase price and could result in the tendered shares being purchased at the minimum price of $16.50 per share.
All shares we purchase will be purchased at the same price, even if you have selected a lower price, but we will not purchase any shares above the purchase price we determine.
If your shares are purchased in the Offer, we will pay you the purchase price in cash, less any applicable withholding taxes and without interest, promptly after the Offer expires. See Sections 1 and 5. Under no circumstances will we pay interest on the purchase price, even if there is a delay in making payment.
How many shares will the Company purchase in the Offer?
We will purchase up to 2,600,000 shares in the Offer (representing approximately 12.9% of outstanding shares of our common stock as of February 14, 2008. If fewer shares are properly tendered, we will purchase all shares that are properly tendered and not properly withdrawn. Each share is coupled with an associated right that we will acquire with the shares of common stock we purchase. No additional consideration will be paid for the rights. If more than 2,600,000 shares are tendered, we will purchase all shares tendered at or below the purchase price on a pro rata basis, except for “odd lots” (lots of less than 100 shares), which we will purchase on a priority basis, and except for each conditional tender whose condition was not met, which we will not purchase (except as described in Section 6). Subject to certain limitations and legal requirements, we reserve the right to accept for payment, according to the terms and conditions of this Offer, up to an additional 2% of outstanding shares of our common stock (or 402,360 shares). In exercising this right, we may increase the purchase price to allow us to purchase all such additional shares. The Offer is not conditioned on any minimum number of shares being tendered, but is subject to other conditions. See Sections 1 and 7.
How will the Company pay for the shares?
Assuming that the maximum of 2,600,000 shares are tendered in the Offer at the maximum purchase price of $20.00 per share, the aggregate purchase price will be $52,000,000. We anticipate that we will pay for the shares tendered in the Offer from our available cash. See Section 9.
How long do I have to tender my shares; can the Offer be extended, amended or terminated?
You may tender your shares until the Offer expires. The Offer will expire on March 18, 2008, at 12:00 midnight, New York City time, unless we extend it. See Section 1. If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely the nominee has established an earlier deadline for you to act to instruct the nominee to accept the Offer on your behalf. We urge you to contact the broker, dealer, commercial bank, trust company or other nominee to find out the nominee’s deadline.
We may choose to extend the Offer at any time and for any reason, subject to applicable laws. See Section 15. We cannot assure you that we will extend the Offer or indicate the length of any extension that we may provide. If we extend the Offer, we will delay the acceptance of any shares that have been tendered. We can also amend the Offer in our sole discretion or terminate the Offer under certain circumstances. See Sections 7 and 15.
How will I be notified if the Company extends the Offer or amends the terms of the Offer?
If we extend the Offer, we will issue a press release announcing the extension and the new Expiration Time by 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Time. We will announce any amendment to the Offer by making a public announcement of the amendment. See Section 15.
What is the purpose of the Offer?
In determining to proceed with the Offer, our management and our Board have reviewed our use of cash flows from operations and investments for, among other things, expansion of sales distribution channels, capital expenditures, acquisitions, strategic investments, dividends and share repurchases, and a variety of alternatives for using our available financial resources. The Board considered, with the assistance of our management, our free cash flow, financial position and dividend policy, and the market price of our Common Stock, as well as our operations, strategy and expectations for the future. See Section 2.
We believe that the modified “Dutch Auction” tender offer is a prudent use of our financial resources given our current liquidity, our prospective capital requirements and the current market price of our shares. We believe that the Offer provides a mechanism to provide our stockholders with the opportunity to tender all or a portion of their shares and thereby receive a return of some or all of their investment if they so elect. In addition, the stockholders who do not participate in the Offer will automatically increase their relative percentage ownership interest in us and our future operations at no additional cost to them. As a result, our Board believes that investing in our own shares in this manner is an appropriate use of capital and an efficient means to provide value to our stockholders. We do not believe that our consummation of the Offer will impair our ability to pursue our business strategy. See Section 10.
The Offer also provides our stockholders with an efficient way to sell their shares without incurring broker’s fees or commissions associated with open market sales. Furthermore, odd lot holders who hold shares registered in their names and tender their shares directly to the Depositary and whose shares are purchased pursuant to the Offer will avoid any applicable odd lot discounts that might be payable on sales of their shares. See Sections 9 and 10.
-2-
The foregoing paragraphs contain forward-looking statements subject to known and unknown risks. See “Cautionary Note on Forward-Looking Statements.”
What are the significant conditions to the Offer?
Our obligation to accept and pay for your tendered shares depends upon a number of conditions that must be satisfied or waived prior to the Expiration Time, including, but not limited to:
|
|
|
|
|
|
• |
No material changes in the general political, market (including, but not limited to, credit, financial and capital markets), economic or financial conditions in the United States or abroad that are reasonably likely to adversely affect our business or the trading in the shares shall have occurred. |
|
|
|
|
|
|
• |
No decrease in excess of 10% in the price of our common stock or in the Dow Jones Industrial Average, the NYSE Composite Index, the NASDAQ–100 Index or the S&P 500 Composite Index shall have occurred during the Offer. |
|
|
|
|
|
|
• |
No legal action shall have been taken, and we shall not have received notice of any legal action, that could reasonably be expected to adversely affect the Offer. |
|
|
|
|
|
|
• |
No one shall have proposed, announced or made a tender or exchange offer (other than this Offer), merger, business combination or other similar transaction involving us. |
|
|
|
|
|
|
• |
No one (including certain groups) shall have acquired or proposed to acquire more than 5% of our shares, other than any person who was a holder of more than 5% of our shares as of the date of this Offer to Purchase. |
|
|
|
|
|
|
• |
No one shall have filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or made a public announcement reflecting an intent to acquire us or any of our subsidiaries. |
|
|
|
|
|
|
• |
No material adverse change in our business, condition (financial or otherwise), assets, income, operations, prospects or stock ownership shall have occurred. |
|
|
|
|
|
|
• |
Our determination that the consummation of the Offer and the purchase of shares pursuant to the Offer will not cause our common stock to be eligible for deregistration under the Securities Exchange Act of 1934, as amended, or the Exchange Act. |
|
|
|
|
|
|
The Offer is subject to a number of other conditions described in greater detail in Section 7. |
|
What are the “associated rights”?
Each time we issue a share of our common stock, we issue to the holder of the share one stock purchase right pursuant to the Rights Agreement, dated as of November 14, 2001 between the Company and American Stock Transfer & Trust Company, as Rights Agent, which is filed as an exhibit to our Issuer Tender Offer Statement on Schedule TO. These associated share purchase rights are not represented by separate certificates. Instead, they are evidenced by certificates of shares of common stock, and they automatically trade with the associated common stock. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company and shall include the rights. Unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
Following the Offer, will the Company continue as a public company?
Yes. The completion of the Offer in accordance with its terms and conditions will not cause the Company to be delisted from NASDAQ or to stop being subject to the periodic reporting requirements of the Exchange Act. See also Section 12.
-3-
How do I tender my shares?
If you want to tender all or part of your shares, you must do one of the following before 12:00 midnight, New York City time, on March 18, 2008 or any later time and date to which the Offer may be extended:
|
|
|
|
|
|
• |
If your shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you must contact the nominee and request that the nominee tender your shares for you and the nominee must do so. |
|
|
|
|
|
|
• |
If you hold certificates in your own name, you must complete and sign a Letter of Transmittal according to its instructions, and deliver it, together with any required signature guarantees, the certificates for your shares and any other documents required by the Letter of Transmittal, to the Depositary for the Offer. |
|
|
|
|
|
|
• |
If you are an institution participating in the book-entry transfer facility, you must tender your shares according to the procedure for book-entry transfer described in Section 3. |
|
|
|
|
|
|
• |
If you are unable to deliver the certificates for the shares or the other required documents to the Depositary or you cannot comply with the procedure for book-entry transfer within the required time, you must comply with the guaranteed delivery procedure outlined in Section 3. |
You may contact the Information Agent for assistance. The contact information for the Information Agent appears on the back cover of this Offer to Purchase. See Section 3 and the Instructions to the Letter of Transmittal.
How do holders of vested stock options participate in the Offer?
If you hold vested but unexercised options to purchase shares, you may exercise such options in accordance with the terms of the applicable stock option plan or plans and tender the shares received upon such exercise in accordance with the Offer. An exercise of an option cannot be revoked even if shares received upon the exercise thereof and tendered in the Offer are not purchased in the Offer for any reason. See Section 3.
Can holders of restricted stock participate in the Offer?
If you hold restricted stock that has not yet vested, you may not tender such restricted stock. However, if you hold vested stock that had previously been restricted, you may participate in the Offer on the same terms and conditions as any holder of our common stock.
What happens if more than 2,600,000 shares are tendered at or below the purchase price?
If more than 2,600,000 shares (or such greater number of shares as we may elect to accept for payment, subject to applicable law) are properly tendered at or below the purchase price and not properly withdrawn prior to the Expiration Time, we will purchase shares in the following order:
|
|
|
|
|
|
• |
first, all “odd lots” of less than 100 shares from holders who properly tender all of their shares at or below the purchase price determined in the Offer and who do not properly withdraw them before the Expiration Time; |
|
|
|
|
|
|
• |
second, from all stockholders who properly tender shares at or below the purchase price we determine, on a pro rata basis (except for stockholders who tendered shares conditionally for which the condition was not satisfied); and |
|
|
|
|
|
|
• |
third, only if necessary to permit us to purchase 2,600,000 shares (or such greater number of shares as we may elect to accept for payment, subject to applicable law), from holders who have tendered shares at or below the purchase price conditionally (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered must have tendered all of their shares. |
-4-
Because of the “odd lot” priority, proration and conditional tender provisions described above, we may not purchase all of the shares that you tender even if you tender them at or below the purchase price. See Section 1.
If I own fewer than 100 shares and I tender all of my shares, will I be subject to proration?
If you own beneficially or of record fewer than 100 shares in the aggregate, you properly tender all of these shares at or below the purchase price and do not properly withdraw them before the Expiration Time, and you complete the section entitled “Odd Lots” in the Letter of Transmittal and, if applicable, in the Notice of Guarantee Delivery, we will purchase all of your shares without subjecting them to the proration procedure. See Section 1.
Once I have tendered shares in the Offer, can I withdraw my tender?
Yes. You may withdraw any shares you have tendered at any time before 12:00 midnight, New York City time, on March 18, 2008 unless we extend the Offer, in which case you can withdraw your shares until the expiration of the Offer as extended. If we have not accepted for payment the shares you have tendered to us, you may also withdraw your shares at any time after 12:00 midnight, New York City time, on March 18, 2008. See Section 4.
How do I withdraw shares I previously tendered?
To withdraw shares, you must deliver a written notice of withdrawal with the required information to the Depositary while you still have the right to withdraw the shares. Your notice of withdrawal must specify your name, the number of shares to be withdrawn and the name of the registered holder of these shares. Some additional requirements apply if the share certificates to be withdrawn have been delivered to the Depositary or if your shares have been tendered under the procedure for book-entry transfer set forth in Section 3. See Section 4. If you have tendered your shares by giving instructions to a bank, broker, dealer, trust company or other nominee, you must instruct the nominee to arrange for the withdrawal of your shares.
Have we or our Board adopted a position on the Offer?
Our Board has approved the Offer. However, none of Madden, our Board, the Information Agent or the Depositary makes any recommendation to you as to whether you should tender or refrain from tendering your shares or as to the purchase price or purchase prices at which you may choose to tender your shares. You must make your own decision as to whether to tender your shares and, if so, how many shares to tender and the purchase price or purchase prices at which your shares should be tendered. In so doing, you should read carefully the information in this Offer to Purchase and the related Letter of Transmittal, including our reasons for making the Offer. See Section 2.
If I decide not to tender, how will the Offer affect my shares?
Stockholders who choose not to tender their shares will own a greater percentage interest in outstanding shares of our common stock following the consummation of the Offer. See Section 2.
-5-
What is the recent market price of my shares?
On February 15, 2008, the last full trading day before we announced our intention to make the Offer, the reported closing price of the shares on NASDAQ was $16.78 per share. You are urged to obtain current market quotations for the shares before deciding whether and at what purchase price or purchase prices to tender your shares. See Section 8.
When will the Company pay for the shares I tender?
We will pay the purchase price, net to the seller in cash, less any applicable withholding tax and without interest, for the shares we purchase promptly after the expiration of the Offer and the acceptance of the shares for payment. We do not expect, however, to announce the results of proration and begin paying for tendered shares until up to five business days after the expiration of the Offer. See Section 5.
Will I have to pay brokerage commissions if I tender my shares?
If you are the record owner of your shares and you tender your shares directly to the Depositary, you will not have to pay brokerage fees or similar expenses. If you own your shares through a bank, broker, dealer, trust company or other nominee and the nominee tenders your shares on your behalf, the nominee may charge you a fee for doing so. You should consult with your bank, broker, dealer, trust company or other nominee to determine whether any charges will apply. See Section 3.
What are the United States federal income tax consequences if I tender my shares?
Generally, if you are a U.S. Holder (as defined in Section 14), you will be subject to U.S. federal income taxation when you receive cash from us in exchange for the shares you tender in the Offer. The receipt of cash for your tendered shares will generally be treated for U.S. federal income tax purposes either as (1) a sale or exchange eligible for capital gain or loss treatment or (2) a distribution in respect of stock from the Company. See Section 14. If you are a non-U.S. Holder (as defined in Section 3), you may be subject to withholding at a rate of 30% on payments received pursuant to the Offer. You may also be subject to tax in your jurisdiction on the disposal of shares. See Section 3 and Section 14. Please consult your personal tax advisor to determine how this will apply to you.
Along with your Letter of Transmittal, you are asked to submit a Substitute Form W-9. Any tendering stockholder or other payee who fails to complete, sign and return to the Depositary the Substitute Form W-9 included with the Letter of Transmittal (or such other Internal Revenue Service, or IRS, form as may be applicable) may be subject to U.S. backup withholding at a rate equal to 28% of the gross proceeds paid to the stockholder or other payee pursuant to the Offer, unless such stockholder establishes that such stockholder is within the class of persons that is exempt from backup withholding (including certain foreign individuals). See Section 3. We recommend that you consult with your tax advisor with respect to your particular situation.
Does the Company intend to repurchase any shares other than pursuant to the Offer during or after the Offer?
Our Board of Directors has authorized an ongoing share repurchase program for the purchase of up to an aggregate of $75 million of shares. Under this repurchase program, approximately $29 million of shares have been repurchased and, to the extent the Company purchases any shares in the Offer, the purchase price paid will further reduce the amount of funds available under the repurchase program. This repurchase program has no set termination date. However, Rule 13e-4(f) under the Exchange Act prohibits us from purchasing any shares, other than in the Offer, until at least 10 business days after the Expiration Time. Accordingly, any additional purchases outside the Offer may not be consummated until at least 10 business days after the Expiration Time. See Section 17.
Do the directors and executive officers of the Company intend to tender their shares in the Offer?
Our directors and executive officers have advised us that they do not intend to tender any of their shares in the Offer. Accordingly, if we complete the Offer, the proportional holdings of our directors and executive officers will increase. However, our directors and executive officers may, in compliance with stock ownership guidelines and applicable law, sell their shares in open market transactions at prices that may or may not be more favorable than the purchase price to be paid to our stockholders in the Offer. See Section 11.
Will I have to pay stock transfer tax if I tender my shares?
We will pay all stock transfer taxes unless payment is made to, or if shares not tendered or accepted for payment are to be registered in the name of, someone other than the registered holder, or tendered certificates are registered in the name of someone other than the person signing the Letter of Transmittal. See Section 5.
-6-
What is the accounting treatment of the Offer?
The accounting for the repurchase of the shares under the Offer will result in a reduction of our stockholders’ equity in an amount equal to the aggregate purchase price of the repurchased shares and a reduction in cash and marketable securities.
Whom can I talk to if I have questions?
If you have any questions regarding the Offer, please contact D.F.King & Co., Inc., the Information Agent for the Offer toll-free at (800) 901-0068. Additional contact information for the Information Agent is set forth on the back cover of this Offer to Purchase.
-7-
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
This Offer to Purchase, including any documents referred to in Section 10 of this Offer to Purchase (“Information About Steven Madden Ltd.”) as forming a part of this Offer to Purchase, contains “forward-looking statements,” which are statements relating to future events, future financial performance, strategies, expectations and competitive environment. Words such as “may,” “will,” “should,” “could,” “would,” “predicts,” “potential,” “continue,” “expects,” “anticipates,” “future,” “intends,” “plans,” “believes,” “estimates” and similar expressions, as well as statements in the future tense, identify forward-looking statements.
You should not read forward-looking statements as a guarantee of future performance or results. They will not necessarily be accurate indications of whether or at what time such performance or results will be achieved. Forward-looking statements are based on information available at the time those statements are made and/or management’s good faith belief at that time with respect to future events. Such statements are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. Important factors that could cause such differences include, but are not limited to: uncertainties related to our ability to implement our business strategy; uncertainties related to litigation; economic and political conditions in the United States and abroad; and other risks outlined in Madden’s filings with the SEC. All forward-looking statements are effective only as of the date they are made. Except as may be required by law, we undertake no obligation to make any revision to the forward-looking statements contained in this Offer to Purchase, the accompanying Letter of Transmittal or in any document referred to in this Offer to Purchase or to update them to reflect events or circumstances occurring after the date of this Offer to Purchase.
You should not place undue reliance on the forward-looking statements, which speak only as to the date of this Offer to Purchase or the date of documents incorporated by reference.
In addition, please refer to our Quarterly Reports on Form 10-Q for the quarterly periods ended September 30, 2007, June 30, 2007 and March 31, 2007, and our Annual Report on Form 10-K for the fiscal year ended December 31, 2006, in each case as filed with the U.S. Securities and Exchange Commission, each of which shall be deemed to form a part of this Offer to Purchase, for additional information on risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements or that may otherwise impact our company and business. See Section 10. Any statement contained in this Offer to Purchase or in a document referred to in this Offer to Purchase shall be deemed to be modified or superseded to the extent such modification or superseded information is included in any document subsequently filed with the SEC. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Offer to Purchase.
Notwithstanding anything in this Offer to Purchase, the Letter of Transmittal or any document referred to in this Offer to Purchase, the safe harbor protections of the Private Securities Litigation Reform Act of 1995 do not apply to statements made in connection with a tender offer.
-8-
To the Holders of our Common Stock:
We invite our stockholders to tender shares of our common stock, par value $0.0001 per share (the “common stock”), including the associated rights, for purchase by us. Upon the terms and subject to the conditions of this Offer to Purchase and the related Letter of Transmittal, we are offering to purchase up to 2,600,000 shares at a price not greater than $20.00 nor less than $16.50 per share, net to the seller in cash, less applicable withholding taxes and without interest. We will not pay any additional consideration for the rights.
The Offer will expire at 12:00 midnight, New York City time, on March 18, 2008 unless extended, we refer to such date and time, as they may be extended, as the Expiration Time.
After the Offer expires, we will look at the prices chosen by stockholders for all of the shares properly tendered. We will then select the lowest purchase price within the price range specified above that will allow us to buy 2,600,000 shares. If fewer shares are properly tendered, we will select the price (in multiples of $0.50) that will allow us to buy all the shares that are properly tendered and not properly withdrawn. All shares we acquire in the Offer will be acquired at the same purchase price regardless of whether the stockholder tendered at a lower price.
We will purchase only shares properly tendered at prices at or below the purchase price we determine and not properly withdrawn. However, because of the “odd lot” priority, proration and conditional tender provisions described in this Offer to Purchase, we may not purchase all of the shares tendered even if stockholders tendered at or below the purchase price if more than the number of shares we seek are properly tendered. We will return shares tendered at prices in excess of the purchase price that we determine and shares that we do not purchase because of the “odd lot” priority, proration or conditional tenders to the tendering stockholders at our expense promptly following the Expiration Time. See Section 1.
Subject to certain limitations and legal requirements, we reserve the right to accept for payment, according to the terms and conditions of this Offer, up to an additional 2% of outstanding shares of our common stock (or 402,360 shares). See Sections 1 and 15.
Tendering stockholders whose shares are registered in their own names and who tender directly to American Stock Transfer & Trust Co., the Depositary for the Offer, will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 7 to the Letter of Transmittal, stock transfer taxes on the purchase of shares by us under the Offer. If you own your shares through a bank, broker, dealer, trust company or other nominee and the nominee tenders your shares on your behalf, the nominee may charge you a fee for doing so. You should consult your bank, broker, dealer, trust company or other nominee to determine whether any charges will apply.
The Offer is not conditioned upon any minimum number of shares being tendered. Our obligation to accept, and pay for, shares validly tendered pursuant to the Offer is conditioned upon satisfaction or waiver of the conditions set forth in Section 7 of this Offer to Purchase.
Our Board has approved the Offer. However, none of Madden, Board, the Depositary or the Information Agent makes any recommendation whether you should tender or refrain from tendering your shares or at what purchase price or purchase prices you should choose to tender your shares. You must decide whether to tender your shares and, if so, how many shares to tender and the price or prices at which you will tender them. You should discuss whether to tender your shares with your broker or other financial or tax advisor. In so doing, you should read carefully the information in this Offer to Purchase and the related Letter of Transmittal, including our reasons for making the Offer. See Section 2.
-9-
Any tendering stockholder or other payee who fails to complete, sign and return to the Depositary the Substitute Form W-9 included with the Letter of Transmittal (or such other IRS form as may be applicable) may be subject to U.S. backup withholding at a rate equal to 28% of the gross proceeds paid to the holder or other payee pursuant to the Offer, unless such holder establishes that such holder is within the class of persons that is exempt from backup withholding. See Section 3. Also see Section 14 of this Offer to Purchase regarding certain U.S. federal income tax consequences of a sale of shares under the Offer.
As of February 14, 2008, there were 20,117,983 shares of our common stock issued and outstanding, not including 5,662,055 of our issued shares held in treasury. The 2,600,000 shares that we are offering to purchase hereunder represent approximately 12.9% of the total number of issued shares. The shares are listed and traded on NASDAQ under the symbol “SHOO.” On February 15, 2008, the last full trading day before we announced our intention to make the Offer, the reported closing price of the shares on the was $16.78 per share. Stockholders are urged to obtain current market quotations for the shares before deciding whether and at what purchase price or purchase prices to tender their shares. See Section 8.
-10-
General. Upon the terms and subject to the conditions of the Offer, we will purchase up to 2,600,000 shares of our common stock, or if fewer shares are properly tendered, all shares that are properly tendered and not properly withdrawn in accordance with Section 4, at a price not greater than $20.00 nor less than $16.50 per share, net to the seller in cash, less any applicable withholding tax and without interest.
The term “Expiration Time” means 12:00 midnight, New York City time, on March 18, 2008, unless we, in our sole discretion, shall have extended the period of time during which the Offer will remain open, in which event the term “Expiration Time” shall refer to the latest time and date at which the Offer, as so extended by us, shall expire. See Section 15 for a description of our right to extend, delay, terminate or amend the Offer. In accordance with the rules of the Securities and Exchange Commission and subject to certain limitations and legal requirements, we reserve the right to accept for payment, according to the terms and conditions of this Offer, up to an additional 2% of the outstanding shares of our common stock (or 402,360 shares). See Section 15.
If the Offer is oversubscribed as described below, shares tendered at or below the purchase price and not properly withdrawn will be subject to proration, except for “odd lots.” The proration period and, except as described herein, withdrawal rights expire at the Expiration Time.
If we:
|
|
|
|
|
|
• |
increase the price to be paid for shares above $20.00 per share or decrease the price to be paid for shares below $16.50 per share; |
|
|
|
|
|
|
• |
increase the number of shares being sought in the Offer and such increase in the number of shares being sought exceeds 2% of outstanding shares of our common stock (or 402,360 shares); or |
|
|
|
|
|
|
• |
decrease the number of shares being sought in the Offer; and |
the Offer is scheduled to expire at any time earlier than the expiration of a period ending at 12:00 midnight, New York City time, on the tenth business day (as defined below) from, and including, the date that notice of any such increase or decrease is first published, sent or given in the manner specified in Section 15, then the Offer will be extended until the expiration of such period of ten business days. For the purposes of the Offer, a “business day” means any day other than a Saturday, Sunday or United States federal holiday and consists of the time period from 12:01 a.m. to 12:00 midnight, New York City time.
The Offer is not conditioned on any minimum number of shares being tendered. The Offer is, however, subject to other conditions. See Section 7.
In accordance with Instruction 5 of the Letter of Transmittal, stockholders desiring to tender shares must specify the price or prices, not in excess of $20.00 nor less than $16.50 per share, at which they are willing to sell their shares to us under the Offer. Alternatively, stockholders desiring to tender shares can choose not to specify a price and, instead, elect to tender their shares at the purchase price ultimately paid for shares properly tendered and not properly withdrawn in the Offer, which could result in the tendering stockholder receiving the minimum price of $16.50 per share. See Section 8 for recent market prices for the shares.
Promptly following the Expiration Time, we will look at the prices chosen by stockholders for all of the shares properly tendered and will determine the purchase price that we will pay for shares properly tendered and not properly withdrawn in the Offer. Once the purchase price has been determined, we intend to promptly disclose such price in a manner calculated to inform stockholders of this information, which will include a press release through PR Newswire or another comparable service and a filing on Form 8-K of such information.
-11-
All shares we acquire in the Offer will be acquired at the same purchase price regardless of whether the stockholder tendered at a lower price. We will purchase only shares properly tendered at prices at or below the purchase price we determine and not properly withdrawn. However, because of the “odd lot” priority, proration and conditional tender provisions described in this Offer to Purchase, we may not purchase all of the shares tendered, even if stockholders tendered at or below the purchase price, if more than the number of shares we seek to purchase are properly tendered and not properly withdrawn. We will return shares tendered at prices in excess of the purchase price that we determine and shares that we do not purchase because of the “odd lot” priority, proration or conditional tender provisions to the tendering stockholders at our expense promptly after the Offer expires. Stockholders can specify one minimum price for a specified portion of their shares and a different minimum price for other specified shares, but a separate Letter of Transmittal must be submitted for shares tendered at each price. See Instruction 5 to the Letter of Transmittal.
Stockholders also can specify the order in which we will purchase the specified portions in the event that, as a result of the proration provisions or otherwise, we purchase some but not all of the tendered shares pursuant to the Offer. In the event a stockholder does not designate the order and fewer than all shares are purchased due to proration, the Depositary will select the order of shares purchased.
If the number of shares properly tendered at or below the purchase price and not properly withdrawn prior to the Expiration Time is less than or equal to 2,600,000 shares, or such greater number of shares as we may elect to accept for payment, subject to applicable law, we will, upon the terms and subject to the conditions of the Offer, purchase all shares so tendered at the purchase price.
Priority of Purchases. Upon the terms and subject to the conditions of the Offer, if more than 2,600,000 shares, or such greater number of shares as we may elect to accept for payment, subject to applicable law, have been properly tendered at prices at or below the purchase price selected by us and not properly withdrawn prior to the Expiration Time, we will purchase properly tendered shares on the basis set forth below:
|
|
|
|
|
|
|
First, we will purchase all shares tendered by any Odd Lot Holder (as defined below) who: |
||
|
|
|
|
|
|
|
|
• |
tenders all shares owned beneficially and of record by the Odd Lot Holder at a price at or below the purchase price determined in the Offer (tenders of less than all of the shares owned by an Odd Lot Holder will not qualify for this priority); and |
|
|
|
|
|
|
|
|
• |
completes the section entitled “Odd Lots” in the Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery. |
|
|
|
|
|
|
|
Second, subject to the conditional tender provisions described in Section 6, we will purchase all shares tendered at prices at or below the purchase price selected by us on a pro rata basis with appropriate adjustments to avoid purchases of fractional shares, as described below. |
||
|
|
|
|
|
|
|
Third, if necessary to permit us to purchase 2,600,000 shares (or such greater number of shares as we may elect to accept for payment, subject to applicable law), shares conditionally tendered (for which the condition was not initially satisfied) at or below the purchase price selected by us and not properly withdrawn, will, to the extent feasible, be selected for purchase by random lot. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered must have tendered all of their shares. |
||
As a result of the foregoing priorities applicable to the purchase of shares tendered, it is possible that all of the shares that a stockholder tenders in the Offer may not be purchased even if they are tendered at prices at or below the purchase price. In addition, if a tender is conditioned upon the purchase of a specified number of shares, it is possible that none of those shares will be purchased even though those shares were tendered at prices at or below the purchase price.
Odd Lots. The term “odd lots” means all shares properly tendered prior to the Expiration Time at prices at or below the purchase price determined in the Tender Offer and not properly withdrawn by any person (an “Odd Lot Holder”) who owns beneficially or of record fewer than 100 shares in the aggregate and so certified in the appropriate place on the Letter of Transmittal and, if applicable, on the Notice of Guaranteed Delivery.
-12-
To qualify for this priority, an Odd Lot Holder must tender all shares owned by the Odd Lot Holder in accordance with the procedures described in Section 3. Odd Lots will be accepted for payment before any proration of the purchase of other tendered shares. This priority is not available to partial tenders or to beneficial or record holders of 100 or more shares in the aggregate, even if these holders have separate accounts or certificates representing fewer than 100 shares. By tendering in the Tender Offer, an Odd Lot Holder who holds shares in its name and tenders its shares directly to the Depositary would also avoid any applicable odd lot discounts in a sale of the holder’s shares. Any Odd Lot Holder wishing to tender all of its shares pursuant to the Tender Offer should complete the section entitled “Odd Lots” in the Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery.
Proration. If proration of tendered shares is required, we will determine the proration factor promptly following the Expiration Time. Subject to adjustment to avoid the purchase of fractional shares and subject to the provisions governing conditional tenders described in Section 6, proration for each stockholder tendering shares, other than Odd Lot Holders, will be based on the ratio of the number of shares properly tendered and not properly withdrawn by the stockholder, other than Odd Lot Holders, to the total number of shares properly tendered and not properly withdrawn by all stockholders at or below the purchase price selected by us. Because of the difficulty in determining the number of shares properly tendered and not properly withdrawn, and because of the odd lot priority described above and the conditional tender procedure described in Section 6, we expect that we will not be able to announce the final proration factor or commence payment for any shares purchased pursuant to the Offer until up to five business days after the Expiration Time. The preliminary results of any proration will be announced by press release promptly after the Expiration Time. After the Expiration Time, stockholders may obtain preliminary proration information from the Information Agent and also may be able to obtain the information from their brokers.
As described in Section 14, the number of shares that we will purchase from a stockholder under the Offer may affect the United States federal income tax consequences to that stockholder and, therefore, may be relevant to a stockholder’s decision whether or not to tender shares and whether to condition any tender upon our purchase of a stated number of Shares held by such stockholder.
This Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of shares and will be furnished to brokers, dealers, commercial banks and trust companies whose names, or the names of whose nominees, appear on our stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing for subsequent transmittal to beneficial owners of shares.
|
|
|
|
Purpose of the Tender Offer; Certain Effects of the Tender Offer; Other Plans |
Purpose of the Tender Offer.
In determining to proceed with the Offer, management and our Board have reviewed our use of cash flows from operations and investments for, among other things, expansion of sales distribution channels, capital expenditures, acquisitions, strategic investments, dividends and share repurchases, and a variety of alternatives for using our available financial resources. The Board considered, with the assistance of management, our free cash flow, financial position and dividend policy, and the market price of our Common Stock, as well as our operations, strategy and expectations for the future.
In determining the size and number of shares to purchase in the Offer, the Board with the assistance of outside advisors considered a broad range of factors, including our financial condition and dividend policy, operations, competitive position, resources and business prospects, management of the impact of our equity compensation plans, the current market prices of our shares and our desire for future financial flexibility. The Board also considered risks and uncertainties, including the potential for favorable and unfavorable developments relating to our business.
We believe that the modified “Dutch Auction” tender offer is a prudent use of our financial resources given our current liquidity, our prospective capital requirements and the current market price of our shares. We believe that the Offer provides a mechanism to provide our stockholders with the opportunity to tender all or a portion of their shares and thereby receive a return of some or all of their investment if they so elect. In addition, stockholders who do not participate in the Offer will automatically increase their relative percentage ownership interest in us and our future operations at no additional cost to them. As a result, our Board believes that investing in our own shares in this manner is an appropriate use of capital and an efficient means to provide value to our stockholders. We do not believe that our consummation of the Offer will impair our ability to pursue our business strategy. See Section 10.
-13-
The Offer also provides our stockholders with an efficient way to sell their shares without incurring brokers’ fees or commissions. Where shares are tendered by the registered owner of those shares directly to the Depositary, the sale of those shares in the Offer will permit the seller to avoid the usual transaction costs associated with open market sales. Furthermore, odd lot holders who hold shares registered in their names and tender their shares directly to the Depositary and whose shares are purchased pursuant to the Offer will avoid any applicable odd lot discounts that might be payable on sales of their shares.
Neither we nor any member of our Board nor the Depositary nor the Information Agent makes any recommendation to any stockholder as to whether to tender or refrain from tendering any shares or as to the purchase price or purchase prices at which stockholders may choose to tender their shares. We have not authorized any person to make any such recommendation. Stockholders should carefully evaluate all information in the Offer. Stockholders are also urged to consult with their tax advisors to determine the consequences to them of participating or not participating in the Offer, and should make their own decisions about whether to tender shares and, if so, how many shares to tender and the purchase price or purchase prices at which to tender. In doing so, you should read carefully the information in this Offer to Purchase and in the related Letter of Transmittal.
Certain Effects of the Offer. Stockholders who do not tender their shares pursuant to the Offer and stockholders who otherwise retain an equity interest in the Company as a result of a partial tender of shares or proration will continue to be owners of the Company. As a result, those stockholders will realize a proportionate increase in their relative equity interest in the Company and, thus, in our future earnings and assets, if any, and will bear the attendant risks associated with owning our equity securities, including risks resulting from our purchase of shares. However, we may not be able to issue additional shares or equity interests in the future. Stockholders may be able to sell non-tendered shares in the future at a net price significantly higher or lower than the purchase price in the Offer. We can give no assurance, however, as to the price at which a stockholder may be able to sell his or her shares in the future.
Shares we acquire pursuant to the Offer will be held in treasury and will be available for us to issue without further stockholder action (except as required by applicable law and NASDAQ rules) for purposes including, without limitation, acquisitions, raising additional capital and the satisfaction of obligations under existing or future employee benefit or compensation programs or stock plans or compensation programs for directors.
The Offer will reduce our “public float” (the number of shares owned by non-affiliate stockholders and available for trading in the securities markets) and is likely to reduce the number of our stockholders. These reductions may result in lower or higher stock prices and/or reduced liquidity in the trading market for our common stock following completion of the Offer.
Because our directors and executive officers have advised us that they do not intend to tender any of their shares in the Offer, these non-tendering directors and executive officers will increase their proportional stake in us as a result of the Offer. However, after termination of the Offer, our directors and executive officers may, in accordance with applicable law, sell their shares in open market transactions, at prices that may or may not be more favorable than the purchase price to be paid to our stockholders in the Offer. See Section 11.
Other Plans.
Except as otherwise disclosed in this Offer to Purchase or the documents incorporated by reference or referred to herein, we currently have no plans, proposals or negotiations underway that relate to or would result in:
-14-
|
|
|
|
|
|
• |
any extraordinary transaction, such as a merger, reorganization or liquidation, involving us or any of our subsidiaries; |
|
|
|
|
|
|
• |
any purchase, sale or transfer of an amount of our assets or any of our subsidiaries’ assets which is material to us and our subsidiaries, taken as a whole; |
|
|
|
|
|
|
• |
any change in our present Board or management or any plans or proposals to change the number or the term of directors or to fill any vacancies on the Board (except that we may fill vacancies arising on the Board in the future) or to change any material term of the employment contract of any executive officer (except that the compensation committee of our Board evaluates our compensation practices generally); |
|
|
|
|
|
|
• |
any material change in our present dividend rate or policy, our indebtedness or capitalization, our corporate structure or our business; |
|
|
|
|
|
|
• |
any class of our equity securities ceasing to be authorized to be listed on NASDAQ; |
|
|
|
|
|
|
• |
any class of our equity securities becoming eligible for termination of registration under Section 12(g) of the Exchange Act; |
|
|
|
|
|
|
• |
the suspension of our obligation to file reports under Section 13 of the Exchange Act; |
|
|
|
|
|
|
• |
the acquisition or disposition by any person of our securities; or |
|
|
|
|
|
|
• |
any changes in our charter or by-laws that could impede the acquisition of control of us. |
Notwithstanding the foregoing, as part of our long-term corporate goal of increasing stockholder value, we have regularly considered alternatives to enhance stockholder value, including open market repurchases of our shares, modifications of our dividend policy, strategic investments, acquisitions and business combinations, and we intend to continue to consider alternatives to enhance stockholder value. Except as otherwise disclosed in this Offer to Purchase, as of the date hereof, no agreements, understandings or decisions have been reached and there can be no assurance that we will decide to undertake any such alternatives.
|
|
|
|
Procedures for Tendering Shares |
Valid Tender. For a stockholder to make a valid tender of shares under the Offer:
|
|
|
|
|
(i) the Depositary must receive, at one of its addresses set forth on the back cover of this Offer to Purchase and prior to the Expiration Time, a Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an “agent’s message” (see “—Book-Entry Transfer” below), and any other required documents; and either certificates representing the tendered shares or, in the case of tendered shares delivered in accordance with the procedures for book-entry transfer we describe below, a book-entry confirmation of that delivery; or |
|
|
|
|
|
(ii) the tendering stockholder must, before the Expiration Time, comply with the guaranteed delivery procedures we describe below. |
If a broker, dealer, commercial bank, trust company or other nominee holds your shares, it is likely the nominee has established an earlier deadline for you to act to instruct the nominee to accept the Offer on your behalf. We urge you to contact your broker, dealer, commercial bank, trust company or other nominee to find out the nominee’s applicable deadline.
The valid tender of shares by you by one of the procedures described in this Section 3 will constitute a binding agreement between you and us on the terms of, and subject to the conditions to, the Offer.
-15-
In accordance with Instruction 5 of the Letter of Transmittal, each stockholder desiring to tender shares pursuant to the Offer must either (1) check the box in the section of the Letter of Transmittal captioned “Shares Tendered at Price Determined Under the Tender Offer,” in which case you will be deemed to have tendered your shares at the minimum price of $16.50 per share (YOU SHOULD UNDERSTAND THAT THIS ELECTION MAY LOWER THE PURCHASE PRICE AND COULD RESULT IN THE TENDERED SHARES BEING PURCHASED AT THE MINIMUM PRICE OF $16.50 PER SHARE) or (2) check one, and only one, of the boxes corresponding to the price at which shares are being tendered in the section of the Letter of Transmittal captioned “Price (in Dollars) Per Share at Which Shares Are Being Tendered.” A tender of shares will be proper only if one, and only one, of these boxes is checked on the Letter of Transmittal.
If tendering stockholders wish to maximize the chance that their shares will be purchased, they should check the box in the section of the Letter of Transmittal captioned “Shares Tendered at Price Determined Under the Tender Offer.” For purposes of determining the purchase price, those shares that are tendered by stockholders agreeing to accept the purchase price determined in the Offer will be deemed to be tendered at the minimum price of $16.50 per share. You should understand that this election may lower the purchase price and could result in the tendered shares being purchased at the minimum price of $16.50 per share. See Section 8 for recent market prices for the shares.
If tendering stockholders wish to indicate a specific price (in multiples of $0.50) at which their shares are being tendered, they must check the applicable price box in the section of the Letter of Transmittal captioned “Price (in Dollars) Per Share at Which Shares Are Being Tendered.” Tendering stockholders should be aware that this election could mean that none of their shares will be purchased if the price selected by the stockholder is higher than the purchase price we eventually select after the Expiration Time.
A stockholder who wishes to tender shares at more than one price must complete a separate Letter of Transmittal for each price at which shares are being tendered. The same shares cannot be tendered (unless previously properly withdrawn in accordance with the terms of the Offer) at more than one price. In case of withdrawal, stockholders who tendered at multiple prices pursuant to multiple Letters of Transmittal must comply with the procedures set forth in Section 4.
We urge stockholders who hold shares through brokers or banks to consult the brokers or banks to determine whether transaction costs are applicable if they tender shares through the brokers or banks and not directly to the Depositary.
Stockholders also can specify the order in which we will purchase the specified portions in the event that, as a result of the proration provisions or otherwise, we purchase some but not all of the tendered shares pursuant to the Offer. In the event a stockholder does not designate the order and fewer than all shares are purchased due to proration, the Depositary will select the order of shares purchased.
Odd Lot Holders who tender all their shares must also complete the section captioned “Odd Lots” in the Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery, to qualify for the priority treatment available to Odd Lot Holders as set forth in Section 1.
Book-Entry Transfer. For purposes of the Offer, the Depositary will establish an account for the shares at The Depository Trust Company (the “book-entry transfer facility”) within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the book-entry transfer facility’s system may make book-entry delivery of shares by causing the book-entry transfer facility to transfer those shares into the Depositary’s account in accordance with the book-entry transfer facility’s procedures for that transfer. Although delivery of shares may be effected through book-entry transfer into the Depositary’s account at the book-entry transfer facility, the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or an agent’s message, and any other required documents must, in any case, be transmitted to, and received by, the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Time, or the tendering stockholder must comply with the guaranteed delivery procedures we describe below.
The confirmation of a book-entry transfer of shares into the Depositary’s account at the book-entry transfer facility as we describe above is referred to herein as a “book-entry confirmation.” Delivery of documents to the book-entry transfer facility in accordance with the book-entry transfer facility’s procedures will not constitute delivery to the Depositary.
-16-
The term “agent’s message” means a message transmitted by the book-entry transfer facility to, and received by, the Depositary and forming a part of a book-entry confirmation, stating that the book-entry transfer facility has received an express acknowledgment from the participant tendering shares through the book-entry transfer facility that the participant has received and agrees to be bound by the terms of the Letter of Transmittal and that we may enforce that agreement against that participant.
Method of Delivery. The method of delivery of shares, the Letter of Transmittal and all other required documents, including delivery through the book-entry transfer facility, is at the election and risk of the tendering stockholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by book-entry confirmation). If you plan to make delivery by mail, we recommend that you deliver by registered mail with return receipt requested and obtain proper insurance. In all cases, sufficient time should be allowed to ensure timely delivery.
Signature Guarantees. No signature guarantee will be required on a Letter of Transmittal for shares tendered thereby if:
|
|
|
|
|
|
• |
the “registered holder(s)” of those shares signs the Letter of Transmittal and has not completed either the box entitled “Special Delivery Instructions” or the box entitled “Special Payment Instructions” in the Letter of Transmittal; or |
|
|
|
|
|
|
• |
those shares are tendered for the account of an “eligible institution.” |
For purposes hereof, a “registered holder” of tendered shares will include any participant in the book-entry transfer facility’s system whose name appears on a security position listing as the owner of those shares, and an “eligible institution” is a “financial institution,” which term includes most commercial banks, savings and loan associations and brokerage houses, that is a participant in any of the following: (i) the Securities Transfer Agents Medallion Program; (ii) the New York Stock Exchange, Inc. Medallion Signature Program; or (iii) the Stock Exchange Medallion Program.
Except as we describe above, all signatures on any Letter of Transmittal for shares tendered thereby must be guaranteed by an eligible institution. See Instructions 1 and 6 to the Letter of Transmittal. If the certificates for shares are registered in the name of a person other than the signer of the Letter of Transmittal, or if payment is to be made or certificates for shares not tendered or not accepted for payment are to be returned to a person other than the registered holder of the certificates surrendered, then the tendered certificates must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name or names of the registered holders or owners appear on the certificates, with the signatures on the certificates or stock powers guaranteed as aforesaid. See Instructions 1, 6 and 8 to the Letter of Transmittal.
Guaranteed Delivery. If you wish to tender shares under the Offer and your certificates for shares are not immediately available or the procedures for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Depositary prior to the Expiration Time, your tender may be effected if all the following conditions are met:
|
|
|
|
|
|
• |
your tender is made by or through an eligible institution; |
|
|
|
|
|
|
• |
a properly completed and duly executed Notice of Guaranteed Delivery in the form we have provided is received by the Depositary, as provided below, prior to the Expiration Time; and |
|
|
|
|
|
|
• |
the Depositary receives, at one of its addresses set forth on the back cover of this Offer to Purchase and within the period of three business days after the date of execution of that Notice of Guaranteed Delivery, either: (i) the certificates representing the shares being tendered, in the proper form for transfer, together with (1) a Letter of Transmittal, which has been properly completed and duly executed and includes all signature guarantees required thereon, and (2) all other required documents; or (ii) confirmation of book-entry transfer of the shares into the Depositary’s account at the book-entry transfer facility, together with (1) either a Letter of Transmittal, which has been properly completed and duly executed and includes all signature guarantees required thereon, or an agent’s message and (2) all other required documents. |
-17-
A Notice of Guaranteed Delivery must be delivered to the Depositary by hand, overnight courier, facsimile transmission or mail before the Expiration Time and must include a guarantee by an eligible institution in the form set forth in the Notice of Guaranteed Delivery.
Return of Unpurchased Shares. The Depositary will return certificates for unpurchased shares promptly after the expiration or termination of the Offer or the proper withdrawal of the shares, as applicable, or, in the case of shares tendered by book-entry transfer at the book-entry transfer facility, the Depositary will credit the shares to the appropriate account maintained by the tendering stockholder at the book-entry transfer facility, in each case, without expense to the stockholder.
Tendering Stockholders’ Representation and Warranty; Our Acceptance Constitutes an Agreement. It is a violation of Rule 14e-4 promulgated under the Exchange Act for a person acting alone or in concert with others, directly or indirectly, to tender shares for such person’s own account unless at the time of tender and at the Expiration Time such person has a “net long position” in (a) the shares that is equal to or greater than the amount tendered and will deliver or cause to be delivered such shares for the purpose of tendering to us within the period specified in the Offer or (b) other securities immediately convertible into, exercisable for or exchangeable into shares (“Equivalent Securities”) that is equal to or greater than the amount tendered and, upon the acceptance of such tender, will acquire such shares by conversion, exchange or exercise of such Equivalent Securities to the extent required by the terms of the Offer and will deliver or cause to be delivered such shares so acquired for the purpose of tender to us within the period specified in the Offer. Rule 14e-4 also provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. A tender of shares made pursuant to any method of delivery set forth herein will constitute the tendering stockholder’s acceptance of the terms and conditions of the Offer, as well as the tendering stockholder’s representation and warranty to us that (a) such stockholder has a “net long position” in shares or Equivalent Securities at least equal to the shares being tendered within the meaning of Rule 14e-4, and (b) such tender of shares complies with Rule 14e-4. Our acceptance for payment of shares tendered pursuant to the Offer will constitute a binding agreement between the tendering stockholder and us upon the terms and subject to the conditions of the Offer.
Determination of Validity; Rejection of Shares; Waiver of Defects; No Obligation to Give Notice of Defects. All questions as to the number of shares to be accepted, the price to be paid for shares to be accepted and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of shares will be determined by us, in our sole discretion, and our determination will be final and binding on all parties. We reserve the absolute right prior to the expiration of the Offer to reject any or all tenders we determine not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any conditions of the Offer with respect to all stockholders or any defect or irregularity in any tender with respect to any particular shares or any particular stockholder whether or not we waive similar defects or irregularities in the case of other stockholders. No tender of shares will be deemed to have been validly made until all defects or irregularities relating thereto have been cured or waived. None of us, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our reasonable interpretation of the terms of and conditions to the Offer, including the Letter of Transmittal and the instructions thereto, will be final and binding on all parties. By tendering shares to us, you agree to accept all decisions we make concerning these matters and waive any right you might otherwise have to challenge those decisions.
United States Federal Income Tax Withholding. Under the United States backup withholding rules, 28% of the gross proceeds payable to a stockholder or other payee pursuant to the Offer must be withheld and remitted to the United States Treasury, unless the stockholder or other payee provides its taxpayer identification number (employer identification number or social security number) to the Depositary and certifies that such number is correct or an exemption otherwise applies under applicable regulations. Therefore, unless an exemption exists and is proven in a manner satisfactory to the Depositary, each tendering stockholder should complete and sign the Substitute Form W-9 included as part of the Letter of Transmittal so as to provide the information and certification necessary to avoid backup withholding. Certain stockholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order for a non-U.S. Holder (see definition below) to qualify as an exempt recipient, that stockholder must submit a statement (generally, an IRS Form W-8BEN), signed under penalties of perjury, attesting to that stockholder’s exempt status. Such statements can be obtained from the Depositary. See Instruction 10 of the Letter of Transmittal.
-18-
ANY TENDERING STOCKHOLDER OR OTHER PAYEE THAT FAILS TO COMPLETE FULLY AND SIGN THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL MAY BE SUBJECT TO REQUIRED UNITED STATES BACKUP WITHHOLDING AT A RATE EQUAL TO 28% OF THE GROSS PROCEEDS PAID TO SUCH STOCKHOLDER OR OTHER PAYEE PURSUANT TO THE OFFER.
Gross proceeds payable pursuant to the Offer to a non-U.S. Holder or his or her agent will be subject to withholding of United States federal income tax at a rate of 30%, unless we determine that a reduced rate of withholding is applicable pursuant to a income tax treaty or that an exemption from withholding is applicable because such gross proceeds are effectively connected with the conduct of a trade or business within the United States. For this purpose, a non-U.S. Holder is any stockholder that is not for United States federal income tax purposes: (a) an individual citizen or resident of the United States, (b) a corporation or a partnership created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (c) an estate the income of which is subject to United States federal income taxation regardless of its source, or (d) a trust if (x) a court within the United States can exercise primary supervision of the trust’s administration and one or more United States persons have the authority to control all substantial decisions of the trust, or (y) it has a valid election in effect under applicable Treasury Regulations to be treated as a United States person. A non-U.S. Holder may be eligible to file for a refund of such tax or a portion of such tax withheld if such stockholder meets the “complete redemption,” “substantially disproportionate” or “not essentially equivalent to a dividend” tests described in Section 14 or if such stockholder is entitled to a reduced rate of withholding pursuant to a income tax treaty and we withheld at a higher rate. In order to obtain a reduced rate of withholding under a income tax treaty, a non-U.S. Holder must deliver to the Depositary before the payment a properly completed and executed IRS Form W-8BEN claiming such an exemption or reduction. Such forms can be obtained from the Depositary. In order to claim an exemption from withholding on the grounds that gross proceeds paid pursuant to the Offer are effectively connected with the conduct of a trade or business within the United States, a non-U.S. Holder must deliver to the Depositary a properly executed IRS Form W-8ECI claiming such exemption. Such forms can be obtained from the Depositary. See Instruction 10 of the Letter of Transmittal. Backup withholding generally will not apply to amounts subject to the 30% or a treaty-reduced rate of withholding. Non-U.S. Holders are urged to consult their own tax advisors regarding the application of United States federal income tax withholding, including eligibility for a withholding tax reduction or exemption and the refund procedure. A non-U.S. Holder that qualifies for an exemption from withholding by delivering IRS Form W-8ECI generally will be required to file a United States federal income tax return and generally will be subject to United States federal income tax on income derived from the sale of shares pursuant to the Offer in the manner and to the extent described in Section 14 as if it were a U.S. Holder. Additionally, in the case of a foreign corporation, such income may be subject to the branch profits tax at a rate of 30% (or a lower rate specified in an applicable income tax treaty). The Depositary will determine a shareholder’s status as a non-U.S. Holder and eligibility for a reduced rate of, or exemption from, withholding by reference to any outstanding, valid certificates or statements concerning eligibility for a reduced rate of, or exemption from, withholding (e.g., IRS Form W-8BEN or IRS Form W-8ECI) unless facts and circumstances indicate that reliance is not warranted.
Lost Certificates. If the share certificates which a registered holder wants to surrender have been lost, destroyed or stolen, the stockholder should promptly notify the Depositary at (800) 937-5449. The Depositary will instruct the stockholder as to the steps that must be taken in order to replace the certificates.
|
|
|
|
Withdrawal Rights |
Except as this Section 4 otherwise provides, tenders of shares are irrevocable. You may withdraw shares that you have previously tendered under the Offer according to the procedures we describe below at any time prior to the Expiration Time for all shares. You may also withdraw your previously tendered shares at any time after 12:00 midnight, New York City time, on March 18, 2008, unless such shares have been accepted for payment as provided in the Offer.
For a withdrawal to be effective, a written notice of withdrawal must:
-19-
|
|
|
|
|
|
• |
be received in a timely manner by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase; and |
|
|
|
|
|
|
• |
specify the name of the person having tendered the shares to be withdrawn, the number of shares to be withdrawn and the name of the registered holder of the shares to be withdrawn, if different from the name of the person who tendered the shares. |
If certificates for shares have been delivered or otherwise identified to the Depositary, then, prior to the physical release of those certificates, the serial numbers shown on those certificates must be submitted to the Depositary and, unless an eligible institution has tendered those shares, an eligible institution must guarantee the signatures on the notice of withdrawal.
If a stockholder has used more than one Letter of Transmittal or has otherwise tendered shares in more than one group of shares, the stockholder may withdraw shares using either separate notices of withdrawal or a combined notice of withdrawal, so long as the information specified above is included.
If shares have been delivered in accordance with the procedures for book-entry transfer described in Section 3, any notice of withdrawal must also specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn shares and otherwise comply with the book-entry transfer facility’s procedures.
Withdrawals of tenders of shares may not be rescinded, and any shares properly withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. Withdrawn shares may be retendered prior to the Expiration Time by again following one of the procedures described in Section 3.
We will decide, in our sole discretion, all questions as to the form and validity, including time of receipt, of notices of withdrawal, and each such decision will be final and binding on all parties. We also reserve the absolute right to waive any defect or irregularity in the withdrawal of shares by any stockholder, whether or not we waive similar defects or irregularities in the case of any other stockholder. None of us, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.
If we extend the Offer, are delayed in our purchase of shares or are unable to purchase shares under the Offer as a result of a failure of a condition set forth in Section 7, then, without prejudice to our rights under the Offer, the Depositary may, subject to applicable law, retain tendered shares on our behalf, and such shares may not be withdrawn except to the extent tendering stockholders are entitled to withdrawal rights as described in this Section 4. Our reservation of the right to delay payment for shares that we have accepted for payment is limited by Rule 13e-4(f)(5) promulgated under the Exchange Act, which requires that we must pay the consideration offered or return the shares tendered promptly after termination or withdrawal of a tender offer.
5. Purchase of Shares and Payment of Purchase Price
Upon the terms and subject to the conditions of the Offer, promptly following the Expiration Time, we will (1) determine a single per share purchase price we will pay for the shares properly tendered and not properly withdrawn before the Expiration Time, taking into account the number of shares tendered and the prices specified by tendering stockholders, and (2) subject to certain limitations and legal requirements, accept for payment up to an additional 2% of the outstanding shares of our common stock (or 402,360 shares), properly tendered at prices at or below the purchase price, and not properly withdrawn before the Expiration Time. In exercising this right, we may increase the purchase price to allow us to purchase all such additional shares.
For purposes of the Offer, we will be deemed to have accepted for payment (and therefore purchased), subject to the “odd lot” priority, proration and conditional tender provisions of this Offer, shares that are properly tendered at or below the purchase price selected by us and not properly withdrawn only when, as and if we give oral or written notice to the Depositary of our acceptance of the shares for payment pursuant to the Offer.
Upon the terms and subject to the conditions of the Offer, we will accept for payment and pay the per share purchase price for all of the shares accepted for payment pursuant to the Offer promptly after the Expiration Time. In all cases, payment for shares tendered and accepted for payment pursuant to the Offer will be made promptly, subject to possible delay in the event of proration, but only after timely receipt by the Depositary of:
-20-
|
|
|
|
|
|
• |
certificates for shares, or a timely book-entry confirmation of the deposit of shares into the Depositary’s account at the book-entry transfer facility, |
|
|
|
|
|
|
• |
a properly completed and duly executed Letter of Transmittal, or, in the case of a book-entry transfer, an agent’s message, and |
|
|
|
|
|
|
• |
any other required documents. |
We will pay for shares purchased pursuant to the Offer by depositing the aggregate purchase price for the shares with the Depositary, which will act as agent for tendering stockholders for the purpose of receiving payment from us and transmitting payment to the tendering stockholders.
In the event of proration, we will determine the proration factor and pay for those tendered shares accepted for payment promptly after the Expiration Time. However, we expect that we will not be able to announce the final results of any proration or commence payment for any shares purchased pursuant to the Offer until up to five business days after the Expiration Time. Certificates for all shares tendered and not purchased, including all shares tendered at prices in excess of the purchase price and shares not purchased due to proration or conditional tenders will be returned to the tendering stockholder or, in the case of shares tendered by book-entry transfer, will be credited to the account maintained with the book-entry transfer facility by the participant who delivered the shares at our expense promptly after the Expiration Time or termination of the Offer.
Under no circumstances will we pay interest on the purchase price, including, but not limited to, by reason of any delay in making payment. In addition, if certain events occur, we may not be obligated to purchase shares pursuant to the Offer. See Section 7.
We will pay all stock transfer taxes, if any, payable on the transfer to us of shares purchased pursuant to the Offer. If, however, payment of the purchase price is to be made to, or (in the circumstances permitted by the Offer) if unpurchased shares are to be registered in the name of, any person other than the registered holder, or if tendered certificates are registered in the name of any person other than the person signing the Letter of Transmittal, the amount of all stock transfer taxes, if any (whether imposed on the registered holder or the other person), payable on account of the transfer to the person will be deducted from the purchase price unless satisfactory evidence of the payment of the stock transfer taxes, or exemption from payment of the stock transfer taxes, is submitted. See Instruction 7 of the Letter of Transmittal.
Any tendering stockholder or other payee that fails to complete fully, sign and return to the Depositary the Substitute Form W-9 included with the Letter of Transmittal may be subject to required United States backup withholding at a rate equal to 28% of the gross proceeds paid to the stockholder or other payee pursuant to the Offer. See Section 3. Also see Section 3 and Section 14 regarding United States federal income tax consequences for non-U.S. Holders.
6. Conditional Tender of Shares
Subject to the exception for Odd Lot Holders, in the event of an over-subscription of the Offer, shares tendered at or below the purchase price prior to the Expiration Time will be subject to proration. See Section 1. As discussed in Section 14, the number of shares to be purchased from a particular stockholder may affect the tax treatment of the purchase to the stockholder and the stockholder’s decision whether to tender. Accordingly, a stockholder may tender shares subject to the condition that a specified minimum number of the stockholder’s shares tendered pursuant to a Letter of Transmittal must be purchased if any shares tendered are purchased. Any stockholder desiring to make a conditional tender must so indicate in the box entitled “Conditional Tender” in the Letter of Transmittal, and, if applicable, in the Notice of Guaranteed Delivery.
-21-
Any tendering stockholder wishing to make a conditional tender must calculate and appropriately indicate the minimum number of shares that must be purchased if any are to be purchased. After the Offer expires, if more than 2,600,000 shares (or such greater number of shares as we may elect to accept for payment, subject to applicable law) are properly tendered and not properly withdrawn, so that we must prorate our acceptance of and payment for tendered shares, we will calculate a preliminary proration percentage based upon all shares properly tendered, conditionally or unconditionally. If the effect of this preliminary proration would be to reduce the number of shares to be purchased from any stockholder below the minimum number specified, the tender will automatically be regarded as withdrawn (except as provided in the next paragraph). All shares tendered by a stockholder subject to a conditional tender and regarded as withdrawn as a result of proration will be returned at our expense, promptly after the Expiration Time.
After giving effect to these withdrawals, we will accept the remaining shares properly tendered, conditionally or unconditionally, on a pro rata basis, if necessary. If conditional tenders would otherwise be regarded as withdrawn and would cause the total number of shares to be purchased to fall below 2,600,000 (or such greater number of shares as we may elect to accept for payment, subject to applicable law) then, to the extent feasible, we will select enough of the conditional tenders that would otherwise have been withdrawn to permit us to purchase 2,600,000 shares (or such greater number of shares as we may elect to accept for payment, subject to applicable law). In selecting among the conditional tenders, we will select by random lot, treating all tenders by a particular taxpayer as a single lot, and will limit our purchase in each case to the designated minimum number of shares to be purchased. To be eligible for purchase by random lot, stockholders whose shares are conditionally tendered must have tendered all of their shares.
7. Conditions of the Tender Offer
Notwithstanding any other provision of the Offer, we will not be required to accept for payment, purchase or pay for any shares tendered, and may terminate or amend the Offer or may postpone the acceptance for payment of, or the purchase of and the payment for shares tendered, subject to Rule 13e-4(f)(5) under the Exchange Act (which requires that the issuer making the tender offer shall either pay the consideration offered or return tendered securities promptly after the termination or withdrawal of the tender offer), if at any time prior to the Expiration Time, any of the following events has occurred (or shall have been reasonably determined by us to have occurred) that, in our reasonable judgment and regardless of the circumstances giving rise to the event or events (other than any such event or events that are proximately caused by our action or failure to act), make it inadvisable to proceed with the Offer or with acceptance for payment:
|
|
|
|
|
|
|
• |
there has occurred any change that we deem material in the general political, market, economic or financial conditions in the United States or abroad that is reasonably likely to adversely affect our business or the trading in the shares, including, but not limited to, the following: |
|
|
|
|
|
|
|
|
|
• |
any general suspension of, or general limitation on prices for, or trading in, securities on any national securities exchange in the United States or in the over-the-counter market; |
|
|
|
|
|
|
|
|
• |
a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or any limitation (whether or not mandatory) by any governmental agency or authority on, or any other event that, in our reasonable judgment, could reasonably be expected to adversely affect, the extension of credit by banks or other financial institutions in the United States; |
|
|
|
|
|
|
|
|
• |
the commencement of a war, armed hostilities or other similar national or international calamity directly or indirectly involving the United States, shall have occurred; |
|
|
|
|
|
|
|
|
• |
a decrease in excess of 10% in the market price for the shares or in the Dow Jones Industrial Average, the NYSE Composite Index, the NASDAQ-100 Index or the S&P 500 Composite Index; or |
|
|
|
|
|
|
|
|
• |
in the case of any of the foregoing existing at the time of the commencement of the Offer, in our reasonable judgment, a material acceleration or worsening thereof; |
-22-
|
|
|
|
|
|
|
• |
any change (or condition, event or development involving a prospective change) has occurred in the business, properties, assets, liabilities, capitalization, stockholders’ equity, financial condition, operations, licenses, results of operations or prospects of us or any of our subsidiaries or affiliates, taken as a whole, that, in our reasonable judgment, does or is reasonably likely to have a materially adverse effect on us or any of our subsidiaries or affiliates, taken as a whole, or we have become aware of any fact that, in our reasonable judgment, does or is reasonably likely to have a material adverse effect on the value of the shares; |
|
|
|
|
|
|
|
|
• |
legislation amending the Internal Revenue Code of 1986, as amended (the “Code”), has been passed by either the U.S. House of Representatives or the Senate or becomes pending before the U.S. House of Representatives or the Senate or any committee thereof, the effect of which, in our reasonable judgment, would be to change the tax consequences of the transaction contemplated by the Offer in any manner that would adversely affect us or any of our affiliates; |
|
|
|
|
|
|
|
|
• |
there has been threatened in writing, instituted, or pending any action, proceeding, application or counterclaim by or before any court or governmental, administrative or regulatory agency or authority, domestic or foreign, or any other person or tribunal, domestic or foreign, which: |
|
|
|
|
|
|
|
|
|
• |
challenges or seeks to challenge, restrain, prohibit or delay the making of the Offer, the acquisition by us of the shares in the Offer, or any other matter relating to the Offer, or seeks to obtain any material damages or otherwise relating to the transactions contemplated by the Offer; |
|
|
|
|
|
|
|
|
• |
seeks to make the purchase of, or payment for, some or all of the shares pursuant to the Offer illegal or results in a delay in our ability to accept for payment or pay for some or all of the shares; or |
|
|
|
|
|
|
|
|
• |
seeks to impose limitations on our ability (or any affiliate of ours) to acquire or hold or to exercise full rights of ownership of the shares, including, but not limited to, the right to vote the shares purchased by us on all matters properly presented to our stockholders otherwise could reasonably be expected to materially adversely affect the business, properties, assets, liabilities, capitalization, stockholders’ equity, financial condition, operations, licenses, results of operations or prospects of us or any of our subsidiaries or affiliates, taken as a whole, or the value of the shares; |
|
|
|
|
|
|
|
• |
any action has been taken or any statute, rule, regulation, judgment, decree, injunction or order (preliminary, permanent or otherwise) has been proposed, sought, enacted, entered, promulgated, enforced or deemed to be applicable to the Offer or us or any of our subsidiaries or affiliates by any court, government or governmental agency or other regulatory or administrative authority, domestic or foreign, which, in our reasonable judgment: |
|
|
|
|
|
|
|
|
|
• |
indicates that any approval or other action of any such court, agency or authority may be required in connection with the Offer or the purchase of shares thereunder; |
|
|
|
|
|
|
|
|
• |
could reasonably be expected to prohibit, restrict or delay consummation of the Offer; or |
|
|
|
|
|
|
|
|
• |
otherwise could reasonably be expected to materially adversely affect the business, properties, assets, liabilities, capitalization, stockholders’ equity, financial condition, operations, licenses or results of operations of us or any of our subsidiaries or affiliates, taken as a whole; |
|
|
|
|
|
|
|
• |
a tender or exchange offer for any or all of our outstanding shares (other than this Offer), or any merger, acquisition, business combination or other similar transaction with or involving us or any subsidiary, has been proposed, announced or made by any person or entity or has been publicly disclosed; |
|
|
|
|
|
|
|
|
• |
we learn that: |
|
|
|
|
|
|
|
|
|
• |
any entity, “group” (as that term is used in Section 13(d) (3) of the Exchange Act) or person has acquired or proposes to acquire beneficial ownership of more than 5% of our outstanding shares, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise (other than as and to the extent disclosed in a Schedule 13D or Schedule 13G filed with the SEC on or before February 19, 2008); or |
-23-
|
|
|
|
|
|
|
|
• |
any entity, group or person who has filed a Schedule 13D or Schedule 13G with the SEC on or before February 19, 2008 has acquired or proposes to acquire, whether through the acquisition of stock, the formation of a group, the grant of any option or right, or otherwise, beneficial ownership of an additional 1% or more of our outstanding shares; or |
|
|
|
|
|
|
|
|
• |
any person, entity or group has filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, reflecting an intent to acquire us or any of our shares, or has made a public announcement reflecting an intent to acquire us or any of our subsidiaries or any of our or their respective assets or securities; or |
|
|
|
|
|
|
|
|
• |
any approval, permit, authorization, favorable review or consent of any governmental entity required to be obtained in connection with the Offer has not been obtained on terms satisfactory to us in our reasonable discretion; or |
|
|
|
|
|
|
|
• |
we determine that the consummation of the Offer and the purchase of the shares is reasonably likely to: |
|
|
|
|
|
|
|
|
|
• |
cause the shares to be delisted form NASDAQ; or |
|
|
|
|
|
|
|
|
• |
cause the shares to be eligible for deregistration under the Exchange Act. |
The conditions referred to above are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any of these conditions, and may be waived by us, in whole or in part, at any time and from time to time in our reasonable discretion before the Expiration Time. Our failure at any time to exercise any of the foregoing rights will not be deemed a waiver of any right, and each such right will be deemed an ongoing right that may be asserted at any time and from time to time prior to the Expiration Time. Our right to terminate or amend the Tender Offer or to postpone the acceptance for payment of, or the purchase of and the payment for shares tendered if any of the above listed events occur (or shall have been reasonably determined by us to have occurred) at any time prior to the Expiration Time shall not be affected by any subsequent event regardless of whether such subsequent event would have otherwise resulted in the event having been “cured” or ceasing to exist. Any determination by us concerning the events described above will be final and binding on all parties.
The shares are traded on NASDAQ under the symbol “SHOO.” The following table sets forth, for each of the periods indicated, the high and low sales prices per share, based on published financial sources.
|
|
|
|
|
|
|
|
|
|
|
|
High |
|
Low |
|
||
|
|
|
|
|
|
|
||
|
Year Ending December 31, 2008: |
|
|
|
|
|
|
|
|
First Quarter through February 15, 2008 |
|
$ |
20.08 |
|
$ |
14.61 |
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2007: |
|
|
|
|
|
|
|
|
First Quarter ended March 31, 2007 |
|
$ |
37.00 |
|
|
28.12 |
|
|
Second Quarter ended June 30, 2007 |
|
$ |
33.51 |
|
|
29.49 |
|
|
Third Quarter ended September 30, 2007 |
|
$ |
32.96 |
|
|
18.11 |
|
|
Fourth Quarter ended December 31, 2007 |
|
$ |
24.01 |
|
|
17.50 |
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2006: |
|
|
|
|
|
|
|
|
First Quarter ended March 31, 2006 |
|
$ |
25.43 |
|
|
18.63 |
|
|
Second Quarter ended June 30, 2006 |
|
$ |
37.17 |
|
|
23.20 |
|
|
Third Quarter ended September 30, 2006 |
|
$ |
40.69 |
|
|
26.59 |
|
|
Fourth Quarter ended December 31, 2006 |
|
$ |
44.70 |
|
|
33.99 |
|
On February 15, 2008, the last full trading day before we announced our intention to make the Offer, the last reported sales price of the shares was $16.78 per share. We urge stockholders to obtain a current market price for the shares before deciding whether and at what purchase price or purchase prices to tender their shares.
-24-
Assuming that 2,600,000 shares are purchased in the Offer at the maximum purchase price of $20.00 per share, the aggregate purchase price will be $52,000,000. We will pay for the shares from cash on hand.
10. Information About Steven Madden, Ltd.
General. We design, source, market and sell fashion-forward footwear for women, men and children. We distribute products through our retail stores, our e-commerce website, department and specialty stores throughout the United States and Canada and through special distribution arrangements in Europe, Central and South America, Australia and Indonesia. Our product line includes core products, which are sold year-round, complemented by a broad range of updated styles which are designed to establish or capitalize on market trends. We have established a reputation for its creative designs, popular styles and quality products at accessible price points.
We were incorporated as a New York corporation on July 9, 1990 and reincorporated under the same name in Delaware in November 1998. The Company completed its initial public offering in December 1993 and its shares of common stock currently trade on The NASDAQ Global Select Market under the symbol “SHOO.”
Where You Can Find More Information. We are subject to the informational filing requirements of the Exchange Act, and, accordingly, are obligated to file reports, statements and other information with the SEC relating to our business, financial condition and other matters. Information, as of particular dates, concerning directors and officers, their remuneration, options granted to them, the principal holders of our securities and any material interest of these persons in transactions with us is required to be disclosed in proxy statements distributed to our stockholders and filed with the SEC. We also have filed an Issuer Tender Offer Statement on Schedule TO with the SEC that includes additional information relating to the Offer.
These reports, statements and other information can be inspected and copied at the public reference facilities maintained by the SEC at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Copies of this material may also be obtained by mail, upon payment of the SEC’s customary charges, from the Public Reference Section of the SEC at 100 F Street, N.E., Washington, D.C. 20549. The SEC also maintains a web site on the Internet at http://www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that file electronically with the SEC. These reports, proxy statements and other information concerning us also can be inspected at the offices of the National Association of Securities Dealers, Inc., Reports Section, 1735 K Street, N.W., Washington, D.C. 20006.
The rules of the SEC allow us to disclose important information to you by referring you to other documents filed separately with the SEC. We refer you to the following documents previously filed by us with the SEC, which contain important information about us.
|
|
|
|
|
SEC Filing |
|
Period or Date Filed |
|
|
|
|
|
Annual Report on Form 10-K |
|
Fiscal Year Ended December 31, 2006 filed March 9, 2007. |
|
|
|
|
|
Quarterly Reports on Form 10-Q |
|
Fiscal quarters ended September 30, 2007, June 30, 2007, and March 31, 2007, filed November 9, 2007, August 9, 2007 and May 9, 2007, respectively. |
|
|
|
|
|
Current Reports on Form 8-K |
|
Filed on December 21, 2007, November 6, 2007, October 23, 2007, October 10, 2007, September 18, 2007, September 7, 2007, May 18, 2007, April 16, 2007 and March 13, 2007. |
Any statement contained in this Offer to Purchase or in a document referred to above shall be deemed to be modified or superseded to the extent such statement is made in any subsequently filed document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Offer to Purchase.
-25-
You can obtain any of the documents referenced above from us or from the SEC’s web site at the address described above. The referenced documents are available from us without charge, excluding any exhibits to those documents. You may request a copy of these filings at no cost, by writing or telephoning us at: Steven Madden, Ltd., Attention: Arvind Dharia, 52-16 Barnett Avenue, Long Island City, New York 11104. Please be sure to include your complete name and address in your request. If you request any referenced documents, we will mail them to you by first class mail, or another equally prompt means, within one business day after we receive your request.
11. Interest of Directors and Executive Officers; Transactions and Arrangements Concerning the Shares
As of February 15, 2008 there were 20,117,983 shares of our common stock issued and outstanding, not including 5,662,055 of our issued shares held in treasury. The 2,600,000 shares that we are offering to purchase hereunder represent approximately 12.9% of the total number of issued and outstanding shares of our common stock.
The following table contains information as of February 15, 2008 regarding the number of shares of Madden common stock beneficially owned by (i) each person known to Madden to have beneficial ownership of more than 5% of Madden common stock, (ii) each director of Madden, (iii) each executive officer of Madden and (iv) all directors and executive officers as a group. A person is deemed to be a beneficial owner of any securities of which that person has the right to acquire beneficial ownership within sixty (60) days. The information contained herein is based on information provided by such beneficial holders to Madden or contained in documents publicly filed with the SEC.
|
|
|
|
|
|
|
|
|
|
|
Name and Address of Beneficial Owner(1) |
|
Amount
and Nature of |
|
Percentage |
|
|||
|
Jamieson A. Karson |
|
|
121,200 |
(3) |
|
|
* |
|
|
Jeffrey Silverman |
|
|
|
|
|
|
|
|
|
Arvind Dharia |
|
|
225,243 |
(4) |
|
|
* |
|
|
Awadhesh Sinha |
|
|
30,000 |
(5) |
|
|
* |
|
|
Robert Schmertz |
|
|
180,000 |
(6) |
|
|
* |
|
|
Amelia Newton Varela |
|
|
30,000 |
(7) |
|
|
* |
|
|
Marc S. Cooper |
|
|
1,500 |
(8) |
|
|
* |
|
|
John Madden |
|
|
41,500 |
(9) |
|
|
* |
|
|
Peter Migliorini |
|
|
18,000 |
(10) |
|
|
* |
|
|
Richard P. Randall |
|
|
3,000 |
(11) |
|
|
* |
|
|
Thomas Schwartz |
|
|
53,900 |
(12) |
|
|
* |
|
|
Walter Yetnikoff |
|
|
18,000 |
(13) |
|
|
* |
|
|
Steven Madden |
|
|
2,171,500 |
(14) |
|
|
10.79 |
|
|
BOCAP Corp |
|
|
1,214,000 |
(15) |
|
|
6.03 |
|
|
FMR LLC(16) |
|
|
1,717,050 |
|
|
|
8.55 |
|
|
Barclays Global Investors, NA.(17) |
|
|
1,064,800 |
|
|
|
5.3 |
|
|
UBS AG (18) |
|
|
1,021,000 |
|
|
|
5.08 |
|
|
Burgundy Asset Management Ltd. (19) |
|
|
1,440,737 |
|
|
|
7.2 |
|
|
Directors and Executive Officers as a Group(13 persons) |
|
|
4,107,843 |
(20) |
|
|
20.42 |
|
|
|
|
|
|
|
* indicates beneficial ownership of less than 1%.
(1) Unless otherwise indicated, the address of each beneficial owner is c/o Steven Madden, Ltd., 52-16 Barnett Avenue, Long Island City, New York 11104.
(2) Beneficial ownership as reported in the table above has been determined in accordance with Item 403 of Regulation S-K of the Securities Act of 1933 and Rule 13d-3 of the Securities Exchange Act, and based upon 20,117,983 shares of Common Stock outstanding (excluding treasury shares) as of February 14, 2008.
-26-
(3) Includes (i) 42,500 shares of restricted stock with 1/3 vesting over a three year period and (ii) 15,000 shares of Common Stock held by Mr. Karson’s wife.
(4) Includes (i) 193,243 shares of Common Stock issuable upon the exercise of options held by Mr. Dharia, (ii) 29,000 shares of restricted stock vesting over a three year period and (iii) 3,000 shares of Common Stock held by Mr. Dharia.
(5) Mr. Sinha has been granted 30,000 shares of restricted stock.
(6) Includes (i) 50,000 shares of Common Stock issuable upon the exercise of options held by Mr. Schmertz, (ii) 122,500 shares of restricted stock with 1/3 vesting over a three year period and (iii) 7,500 shares of Common Stock held by Mr. Schmertz.
(7) Includes (i) 22,500 shares of restricted stock with 1/4 vesting over a four year period and (ii) 7,500 shares of Common Stock held by Ms. Varela.
(8) Includes 750 shares of restricted stock with a one year vesting period.
(9) Includes (i) 40,000 shares of Common Stock issuable upon the exercise of options held by Mr.J.Madden and (ii) 750 shares of restricted stock with a one year vesting period.
(10) Includes (i) 15,000 shares of Common Stock issuable upon the exercise of options held by Mr. Migliorini and (ii) 1,500 shares of restricted stock with a one year vesting period.
(11) Includes 1,500 shares of restricted stock with a one year vesting period.
(12) Includes (i) 30,000 shares of Common Stock issuable upon the exercise of options held by Mr. Schwartz,(ii) 1,500 shares of restricted stock with a one year vesting period and (iii) 22,400 shares of Common Stock held by Mr. Schwartz.
(13) Includes (i) 15,000 shares of Common Stock issuable upon the exercise of options held by Mr. Yetnikoff and (ii) 1,500 shares of restricted stock with a one year vesting period.
(14) Includes (i) 1,214,000 shares of Common Stock held by BOCAP, a corporation wholly owned by Mr. S. Madden and (ii) 130,500 shares of restricted stock.
(15) BOCAP is wholly-owned by Mr. S. Madden.
(16) Based upon a Schedule 13G filed with the SEC on November 13, 2007. The address for such stockholder is 82 Devonshire Street, Boston, MA 02109.
(17) Based upon a Schedule 13G filed with the SEC on February 5, 2008. The address for such stockholder is 45 Fremont Street, San Francisco, CA 94105.
(18) Based upon a Schedule 13G filed with the SEC on February 11, 2008 on behalf of the UBS Global Asset Management business group. The address for such stockholder is One North Wacker, Chicago, IL 60606.
(19) Based upon a Schedule 13G filed with the SEC on February 12, 2008. The address for such stockholder is 181 Bay Street, Suite 4510, Toronto, Canada M5J 2T3
(20) Includes 343,243 shares issuable upon the exercise of options.
As of February 15, 2008, our directors and executive officers as a group beneficially owned an aggregate of 4,107,843 shares. If we purchase 2,600,000 common shares pursuant to the Offer, then after the purchase of shares pursuant to the Offer, our executive officers and directors as a group would beneficially own approximately 23.45% of outstanding shares of our common stock.
-27-
Executive officers and directors of the Company may participate in the Offer on the same basis as our other stockholders. We have been advised that none of our directors and executive officers intend to tender shares pursuant to the offer.
Except as otherwise described in this Offer to Purchase, neither we nor, to the best of our knowledge, any of our affiliates, directors or executive officers, is a party to any contract, arrangement, understanding or relationship with an other person relating, directly or indirectly, to the offer or with respect to any of our securities, including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or the voting of the securities, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss or the giving or withholding of proxies, consents or authorizations.
|
|
|
|
|
Recent Securities Transactions |
Based on our records and on information provided to us by our directors, executive officers, affiliates, and subsidiaries, neither we nor any of our directors, executive officers, affiliates or subsidiaries have effected any transactions involving shares of our common stock during the 60 days prior to February 20, 2008, except, on December 21, 2007, the options to purchase 300,000 shares of our common stock held by our president, Jeffrey Silverman, were cancelled by mutual agreement between Mr. Silverman and us.
|
|
|
|
Effects of the Tender Offer on the Market for Shares; Registration under the Exchange Act |
The purchase by us of shares under the Offer will reduce the number of shares that might otherwise be traded publicly and is likely to reduce the number of stockholders. As a result, trading of a relatively small volume of the shares after consummation of the Offer may have a greater impact on trading prices than would be the case prior to consummation of the Offer and the liquidity in our stock may be diminished.
Our shares are currently “margin securities” under the rules of the Federal Reserve Board. This has the effect, among other things, of allowing brokers to extend credit to their customers using such shares as collateral. We believe that, following the purchase of shares in the Offer, the shares will continue to be “margin securities” for purposes of the Federal Reserve Board’s margin rules and regulations.
The shares are registered under the Exchange Act, which requires, among other things, that we furnish certain information to our stockholders and the SEC and comply with the SEC’s proxy rules in connection with meetings of our stockholders.
|
|
|
|
Legal Matters; Regulatory Approvals |
We are not aware of any license or regulatory permit that is material to our business that might be adversely affected by our acquisition of shares as contemplated by the Offer or of any approval or other action by any government or governmental, administrative or regulatory authority or agency, domestic, foreign or supranational, that would be required for the acquisition or ownership of shares by us as contemplated by the Offer that is material to the success of the Offer. Should any such approval or other action be required, we presently contemplate that we will seek that approval or other action if practicable within the time period contemplated by the Offer. We are unable to predict whether we will be required to delay the acceptance for payment of or payment for shares tendered under the Offer pending the outcome of any such matter. There can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial cost or conditions or that the failure to obtain the approval or other action might not result in adverse consequences to its business and financial condition. Our obligations under the Offer to accept for payment and pay for shares is subject to conditions. See Section 7.
-28-
|
|
|
|
United States Federal Income Tax Consequences |
The following describes material United States federal income tax consequences relevant to the Offer. This discussion is based upon the Code, existing and proposed Treasury Regulations, administrative pronouncements and judicial decisions, changes to which could materially affect the tax consequences described herein and could be made on a retroactive basis.
This discussion deals only with shares held as capital assets and does not deal with all tax consequences that may be relevant to all categories of holders (such as dealers in securities or commodities, traders in securities that elect to mark their holdings to market, financial institutions, regulated investment companies, real estate investment trusts, holders whose functional currency is not the United States dollar, insurance companies, tax-exempt organizations or persons who hold shares as part of a hedging, integrated, conversion or constructive sale transaction or as a position in a straddle). In particular, different rules may apply to shares acquired as compensation (including shares acquired upon the exercise of employee stock options or otherwise as compensation). This discussion does not address the state, local or foreign tax consequences of participating in the Offer. Holders of shares should consult their tax advisors as to the particular consequences to them of participation in the Offer.
As used herein, a “U.S. Holder” means a beneficial holder of shares that is for United States federal income tax purposes: (a) an individual citizen or resident of the United States, (b) a corporation or a partnership created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (c) an estate the income of which is subject to United States federal income taxation regardless of its source, or (d) a trust if (x) a court within the United States can exercise primary supervision of the trust’s administration and one or more United States persons have the authority to control all substantial decisions of the trust, or (y) it has a valid election in effect under applicable Treasury Regulations to be treated as a United States person.
Holders of shares that are non-U.S. Holders should consult their tax advisors regarding the United States federal income tax consequences and any applicable foreign tax consequences of the Offer and also should see Section 3 for a discussion of the applicable United States withholding rules and the potential for obtaining a refund of all or a portion of any tax withheld.
If a partnership (or other entity treated as a partnership for United States federal income tax purposes) holds shares, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. Holders that are partners of a partnership holding shares should consult their own tax advisors.
United States Income Tax Treatment of U.S. Holders
Non-Participation in the Tender Offer. U.S. Holders that do not participate in the Offer will not incur any tax liability as a result of the consummation of the Offer.
Exchange of Shares Pursuant to the Tender Offer. An exchange of shares for cash pursuant to the Offer will be a taxable transaction for United States federal income tax purposes. A U.S. Holder that participates in the Offer will be treated, depending on such U.S. Holder’s particular circumstances, either as recognizing gain or loss from the disposition of the shares or as receiving a dividend distribution from us.
-29-
Under Section 302 of the Code, a U.S. Holder will recognize gain or loss on an exchange of shares for cash if the exchange (a) results in a “complete termination” of all such U.S. Holder’s equity interest in us, (b) results in a “substantially disproportionate” redemption with respect to such U.S. Holder, or (c) is “not essentially equivalent to a dividend” with respect to the U.S. Holder. In applying the Section 302 tests, a U.S. Holder must take into account (i) ownership of our common stock and (ii) stock that such U.S. Holder constructively owns under attribution rules, pursuant to which the U.S. Holder will be treated as owning our shares owned by certain family members (except that in the case of a “complete termination” a U.S. Holder may waive, under certain circumstances, attribution from family members) and related entities and our stock that the U.S. Holder has the right to acquire by exercise of an option. An exchange of shares for cash will be a substantially disproportionate redemption with respect to a U.S. Holder if the percentage of the then-outstanding shares owned by such U.S. Holder in us immediately after the exchange is less than 80% of the percentage of the shares owned by such U.S. Holder in us immediately before the exchange. If an exchange of shares for cash fails to satisfy the “substantially disproportionate” test, the U.S. Holder nonetheless may satisfy the “not essentially equivalent to a dividend” test. An exchange of shares for cash will satisfy the “not essentially equivalent to a dividend” test if it results in a “meaningful reduction” of the U.S. Holder’s equity interest in us. An exchange of shares for cash that results in a reduction of the proportionate equity interest in us of a U.S. Holder whose relative equity interest in us is minimal (an interest of less than one percent should satisfy this requirement) and that does not exercise any control over or participate in the management of our corporate affairs should be treated as “not essentially equivalent to a dividend.” U.S. Holders should consult their tax advisors regarding the application of the rules of Section 302 in their particular circumstances.
If a U.S. Holder is treated as recognizing gain or loss from the disposition of the shares for cash, such gain or loss will be equal to the difference between the amount of cash received and such U.S. Holder’s tax basis in the shares exchanged therefor. Any such gain or loss will be capital gain or loss and will be long-term capital gain or loss if the holding period of the shares exceeds one year as of the date of the exchange.
If a U.S. Holder is not treated under the Section 302 tests as recognizing gain or loss on an exchange of shares for cash, the entire amount of cash received by such U.S. Holder pursuant to the exchange will be treated as a dividend to the extent of the portion of our current and accumulated earnings and profits allocable to such shares. Provided certain holding period requirements are satisfied, non-corporate holders generally will be subject to United States federal income tax at a maximum rate of 15% on amounts treated as dividends, i.e., the entire amount of cash received without reduction for the tax basis of the shares exchanged. To the extent that cash received in exchange for shares is treated as a dividend to a corporate U.S. Holder, (a) it will be eligible for a dividends-received deduction (subject to applicable limitations) and (b) it will be subject to the “extraordinary dividend” provisions of Section 1059 of the Code. Corporate U.S. Holders should consult their tax advisors concerning the availability of the dividends-received deduction and the application of the “extraordinary dividend” provisions of Section 1059 of the Code in their particular circumstances.
To the extent that amounts received pursuant to the Offer exceed a U.S. Holder’s allocable share of our current and accumulated earnings and profits, the distribution will first be treated as a non-taxable return of capital, causing a reduction in the adjusted basis of such U.S. Holder’s shares, and any amounts in excess of the U.S. Holder’s adjusted basis will constitute capital gain. Any remaining adjusted basis in the shares tendered will be transferred to any remaining shares held by such U.S. Holder.
We cannot predict whether or the extent to which the Offer will be oversubscribed. If the Offer is oversubscribed, proration of tenders pursuant to the Offer will cause us to accept fewer shares than are tendered. Therefore, a U.S. Holder can be given no assurance that a sufficient number of such U.S. Holder’s shares will be purchased pursuant to the Offer to ensure that such purchase will be treated as a sale or exchange, rather than as a dividend, for United States federal income tax purposes pursuant to the rules discussed above.
U.S. Holders should see Section 3 with respect to the application of United States federal backup withholding.
-30-
United States Income Tax Treatment of Non-U.S. Holders.
Gain realized by a non-U.S. Holder on a sale of shares for cash pursuant to the Offer generally will not be subject to United States federal income tax if the sale is treated as a “sale or exchange” pursuant to the Section 302 tests described above under “United States Federal Income Tax Treatment of U.S. Holders” unless (i) such gain is effectively connected with the conduct by such non-U.S. Holder of a trade or business in the United States (and, if an income tax treaty applies, the gain is generally attributable to the United States permanent establishment maintained by such non-U.S. Holder), (ii) in the case of gain realized by a non-U.S. Holder that is an individual, such non-U.S. Holder is present in the United States for 183 days or more in the taxable year of the sale and certain other conditions are met or (iii) the shares constitute a United States real property interest as defined under Section 897 of the Code and the non-U.S. Holder held, actually or constructively, at any time during the five-year period preceding the Offer more than 5% of our shares. Our shares will constitute a United States real property interest with respect to a non-U.S. Holder if we are or have been a “United States real property holding corporation” for United States federal income tax purposes as defined under Section 897 of the Code at any time during the shorter of (i) the period during which the non-U.S. Holder held shares or (ii) the five-year period ending on the date the non-U.S. Holder sells shares pursuant to the Offer. We do not believe that we are currently, or have been during the last five years, a United States real property holding corporation.
If the non-U.S. Holder does not satisfy any of the Section 302 tests explained above, the full amount received by the non-U.S. Holder with respect to the sale of shares to us pursuant to the Offer will be treated as a distribution to the non-U.S. Holder with respect to the non-U.S. Holder’s shares. The treatment for United States federal income tax purposes of such distribution as a dividend, tax-free return of capital or as capital from the sale of shares will be determined in the manner described above under “United States Federal Income Tax Treatment of U.S. Holders.” To the extent amounts received by a non-U.S. Holder are treated as dividends, such dividends generally will be subject to United States federal withholding at a rate of 30%, unless a reduced rate of withholding is applicable pursuant to an income tax treaty and we have received proper certification. Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under an applicable income tax treaty.
As described in Section 3, a non-U.S. Holder may be eligible to obtain a refund or credit of any excess amounts of United States federal withholding tax if the non-U.S. Holder meets any of the three Section 302 Tests described above under “United States Federal Income Tax Treatment of U.S. Holders” with respect to the sale of shares pursuant to the Offer, or is entitled to a reduced rate of withholding pursuant to an applicable income tax treaty (and we withheld at a higher rate), in either case, provided that an appropriate claim is filed with the IRS. Amounts treated as dividends that are effectively connected with the conduct of a trade or business by the non-U.S. Holder within the United States (or, if provided in an applicable income tax treaty, dividends that are attributable to a United States permanent establishment) are not subject to United States federal withholding tax but instead are subject to United States federal income tax in the manner applicable to U.S. Holders, as described above. In that case, we will not have to withhold United States federal withholding tax if the non-U.S. Holder complies with applicable certification requirements. In addition, a non-U.S. Holder that is a foreign corporation may be subject to a branch profits tax at a 30% rate, or a lower rate specified in an applicable income tax treaty, if dividends or gain in respect of the shares are effectively connected with the conduct of a trade or business in the United States.
Non-U.S. Holders are urged to consult their own tax advisors regarding the application of United States federal withholding tax to the sale of shares pursuant to the Offer, including the eligibility for withholding tax reductions or exemptions and refund procedures, and the application and effect of state, local, foreign and other tax laws.
Non-U.S. Holders should see Section 3 with respect to the application of United States federal backup withholding.
|
|
|
|
Extension of the Tender Offer; Termination; Amendment |
We expressly reserve the right, in our sole discretion, at any time and from time to time, and regardless of whether or not any of the events set forth in Section 7 shall have occurred or shall be deemed by us to have occurred, to extend the period of time during which the Offer is open and thereby delay acceptance for payment of, and payment for, any shares by giving oral or written notice of such extension to the Depositary and making a public announcement of such extension. We also expressly reserve the right, in our sole discretion, if any event set forth in Section 7 has occurred or is deemed by us to have occurred to terminate the Offer and reject for payment and not pay for any shares not theretofore accepted for payment or paid for or, subject to applicable law, to postpone payment for shares by giving oral or written notice of such termination or postponement to the Depositary and making a public announcement of such termination or postponement. Our reservation of the right to delay payment for shares which we have accepted for payment is limited by Rule 13e-4(f)(5) promulgated under the Exchange Act, which requires that we must pay the consideration offered or return the shares tendered promptly after termination or withdrawal of a tender offer. Subject to compliance with applicable law, we further reserve the right, in our sole discretion, and regardless of whether any of the events set forth in Section 7 shall have occurred or shall be deemed by us to have occurred, to amend the Offer in any respect, including, without limitation, by decreasing or increasing the consideration offered in the Offer to holders of shares or by decreasing or increasing the number of shares being sought in the Offer. Amendments to the Offer may be made at any time and from time to time effected by public announcement, such announcement, in the case of an extension, to be issued no later than 9:00 a.m., New York City time, on the next business day after the last previously scheduled or announced Expiration Time. Any public announcement made under the Offer will be disseminated promptly to stockholders in a manner reasonably designed to inform stockholders of such change. Without limiting the manner in which we may choose to make a public announcement, except as required by applicable law, we shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by making a release through PR Newswire or another comparable service. In addition, we would file such press release as an exhibit to the Schedule TO.
-31-
If we materially change the terms of the Offer or the information concerning the Offer, we will extend the Offer to the extent required by Rules 13e-4(d)(2), 13e-4(e)(3) and 13e-4(f)(1) promulgated under the Exchange Act. These rules and certain related releases and interpretations of the SEC provide that the minimum period during which a tender offer must remain open following material changes in the terms of the Offer or information concerning the Offer (other than a change in price or a change in percentage of securities sought) will depend on the facts and circumstances, including the relative materiality of such terms or information; however, in no event will the Offer remain open for fewer than five business days following such a material change in the terms of, or information concerning, the Offer. If (1)(a) we increase or decrease the price to be paid for shares beyond the range, (b) decrease the number of shares being sought in the Offer, or (c) increase the number of shares being sought in the Offer by more than 2% of the outstanding shares of our common stock (or 402,360 shares) and (2) the Offer is scheduled to expire at any time earlier than the expiration of a period ending on the tenth business day from, and including, the date that such notice of an increase or decrease is first published, sent or given to stockholders in the manner specified in this Section 15, the Offer will be extended until the expiration of such period of ten business days.
|
|
|
|
Fees and Expenses |
We have retained D. F. King & Co., Inc. to act as Information Agent and American Stock Transfer & Trust Company to act as Depositary in connection with the Offer. The Information Agent may contact holders of shares by mail, facsimile and personal interviews and may request brokers, dealers and other nominee stockholders to forward materials relating to the Offer to beneficial owners. The Information Agent and the Depositary will each receive reasonable and customary compensation for their respective services, will be reimbursed by us for reasonable out-of-pocket expenses and will be indemnified against certain liabilities in connection with the Offer, including certain liabilities under the federal securities laws.
We will not pay any fees or commissions to brokers, dealers or other persons (other than fees to the Information Agent as described above) for soliciting tenders of shares pursuant to the Offer. Stockholders holding shares through brokers or banks are urged to consult the brokers or banks to determine whether transaction costs may apply if stockholders tender shares through the brokers or banks and not directly to the Depositary. We will, however, upon request, reimburse brokers, dealers and commercial banks for customary mailing and handling expenses incurred by them in forwarding the Offer and related materials to the beneficial owners of shares held by them as a nominee or in a fiduciary capacity. No broker, dealer, commercial bank or trust company has been authorized to act as our agent or the agent of the Information Agent or the Depositary for purposes of the Offer. We will pay or cause to be paid all stock transfer taxes, if any, on our purchase of shares, except as otherwise provided in Instruction 7 in the Letter of Transmittal.
|
|
|
|
Miscellaneous |
Pursuant to Rule 13e-4(c)(2) under the Exchange Act, we have filed with the SEC an Issuer Tender Offer Statement on Schedule TO, which contains additional information with respect to the Offer. The Schedule TO, including the exhibits and any amendments and supplements thereto, may be examined, and copies may be obtained, at the same places and in the same manner as is set forth in Section 10 with respect to information concerning us.
Our Board of Directors has authorized an ongoing share repurchase program for the purchase of up to an aggregate of $75 million of shares. Under this repurchase program, approximately $29 million of shares have been repurchased and, to the extent the Company purchases any shares in the Offer, the purchase price paid will reduce the amount of funds available under the repurchase program. This repurchase program has no set termination date. However, Rule 13e-4(f) under the Exchange Act prohibits us from purchasing any shares other than in the Offer until at least 10 business days after the Expiration Time. Accordingly, any additional purchases outside the Offer may not be consummated until at least 10 business days after the Expiration Time.
-32-
This Offer to Purchase and accompanying Letter of Transmittal do not constitute an offer to purchase securities in any jurisdiction in which such offer is not permitted or would not be permitted. If we become aware of any jurisdiction where the making of the Offer or the acceptance of shares pursuant thereto is not in compliance with applicable law, we will make a good faith effort to comply with the applicable law where practicable. If, after such good faith effort, we cannot comply with the applicable law, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of shares in such jurisdiction.
You should only rely on the information contained in this Offer to Purchase or to which we have referred to you. We have not authorized any person to make any recommendation on behalf of us as to whether you should tender or refrain from tendering your shares in the Offer. We have not authorized any person to give any information or to make any representation in connection with the Offer other than those contained in this Offer to the Purchase or in the related Letter of Transmittal. If given or made, any recommendation or any such information or representation must not be relied upon as having been authorized by us, the Depositary or the Information Agent.
|
|
|
Steven Madden, Ltd. |
-33-
STEVEN MADDEN, LTD.
The Letter of Transmittal, certificates for shares and any other required documents should be sent or delivered by each stockholder of the Company or his or her bank, broker, dealer, trust company or other nominee to the Depositary at one of its addresses set forth below:
The Depositary for the Offer is:
American Stock
Transfer & Trust Company
|
|
|
|
|
By Mail or Overnight Courier: |
By Facsimile: |
By Hand: |
|
|
(Eligible Institutions Only) |
|
|
American
Stock Transfer & Trust |
(718) 234-5001 |
American
Stock Transfer & Trust |
Delivery of the letter of transmittal to an address other than as set forth above will not constitute a valid delivery to the Depositary.
Questions and requests for assistance or for additional copies of this Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may be directed to the Information Agent at its telephone number and locations listed below. You may also contact your bank, broker, dealer, trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D. F. KING & CO., INC.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
Institutional Investors Call: (212) 493-6933
All Others Call Toll-Free (800) 901-0068
Email: info@dfking.com
Letter of Transmittal
To Tender Shares of Common Stock (including the associated rights issued under
the Rights Agreement)
Pursuant to the Offer to Purchase for Cash
Dated February 20, 2008
by
STEVEN MADDEN, LTD.
of
Up to 2,600,000 Shares of its Common Stock
(including the associated Rights issued under
the Rights Agreement)
at a Purchase Price Not Greater Than $20.00 nor Less Than $16.50 Per Share
THE OFFER,
PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL
EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MARCH 18, 2008
UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
American Stock Transfer & Trust Company
|
|
|
|
|
|
|
By Mail or Overnight Courier: |
By Hand: |
|
|
|
|||
|
|
American Stock Transfer & Trust Company |
American Stock Transfer & Trust |
|
|
|
Operations Center |
Company |
|
|
|
Attn: Reorganization Department |
Attn: Reorganization Department |
|
|
|
6201 15th Avenue |
59 Maiden Lane |
|
|
|
Brooklyn, NY 11219 |
New York, NY 10038 |
|
Delivery of this Letter of Transmittal to an address other than as set forth above does not constitute a valid delivery.
The instructions set forth in this Letter of Transmittal should be read carefully before this Letter of Transmittal is completed.
|
|
|
Name(s) and Address of Registered Holder(s) |
DESCRIPTION OF SHARES SURRENDERED
(Please
fill in. Attach separate schedule if needed)
|
|
|
|
Certificate No(s)* |
Number of Shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL SHARES F |
|
|
|
|
|
* Need not be completed if shares are tendered by book-entry transfer. |
|
|
** Unless otherwise indicated, it will be assumed that all shares described above are being tendered. See Instruction 4. |
|
Indicate below the order (by certificate number) in which shares are to be purchased in the event of proration (attach additional signed list if necessary). If you do not designate an order, if less than all shares tendered are purchased due to proration, shares will be selected for purchase by the Depositary. See Instruction 14.
1st: ________________ 2nd: ________________ 3rd: ________________ 4th: ________________ 5th: ________________
|
|
|
|
|
|
|
|
|
|
o |
Lost Certificates. I have lost my certificate(s) for _____ shares and require assistance in replacing the shares. (See Instruction 12). |
This Letter of Transmittal is to be used either if certificates for shares (as defined below) are to be forwarded herewith or, unless an agent’s message (as defined in Section 3 of the Offer to Purchase (as defined below)) is utilized, if delivery of shares is to be made by book-entry transfer to an account maintained by the Depositary (as defined below) at the book-entry transfer facility (as defined in Section 3 of the Offer to Purchase) pursuant to the procedures set forth in Section 3 of the Offer to Purchase. Tendering stockholders whose certificates for shares are not immediately available or who cannot deliver either the certificates for, or a book-entry confirmation (as defined in Section 3 of the Offer to Purchase) with respect to, their shares and all other documents required hereby to the Depositary prior to the Expiration Time (as defined in Section 1 of the Offer to Purchase) must tender their shares in accordance with the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. See Instruction 2.
2
Your attention is directed in particular to the following:
|
|
|
|
|
|
|
1. If you want to retain your shares, you do not need to take any action. |
|
|
|
|
|
|
|
2. If you want to participate in the Offer (as defined below) and wish to maximize the chance of having the Company (as defined below) accept for payment all the shares you are tendering hereby, you should check the box marked “Shares Tendered at Price Determined Under the Tender Offer” below and complete the other portions of this Letter of Transmittal as appropriate. If you agree to accept the purchase price determined in the Offer, your shares will be deemed to be tendered at the minimum price. YOU SHOULD UNDERSTAND THAT THIS ELECTION MAY LOWER THE PURCHASE PRICE AND COULD RESULT IN THE TENDERED SHARES BEING PURCHASED AT THE MINIMUM PRICE OF $16.50 PER SHARE. |
|
|
|
|
|
|
|
3. If you wish to select a specific price at which you will be tendering your shares, you should select one of the boxes in the section captioned “Shares Tendered at Price Determined by Stockholder” below and complete the other portions of this Letter of Transmittal as appropriate. |
DELIVERY OF DOCUMENTS TO THE
BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
|
|
|
|
|
|
|
|
|
|
¨ |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): |
|
|
|
|
Name of Tendering Institution: |
|
|
|
|
|
|
|
|
Account Number: |
|
|
|
|
|
|
|
|
Transaction Code Number: |
|
|
|
|
|
|
|
|
¨ |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY. ENCLOSE A PHOTO-COPY OF THE NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING: |
|
|
|
|
Name(s) of Registered Owners(s): |
|
|
|
|
|
|
|
|
Date of Execution of Notice of Guaranteed Delivery: |
|
|
|
|
|
|
|
|
Name of Institution that Guaranteed Delivery: |
|
|
|
|
|
|
|
|
If delivered by book-entry transfer, check box: ¨ |
|
3
THE UNDERSIGNED IS TENDERING SHARES AS FOLLOWS (CHECK ONLY ONE BOX):
|
|
|
|
|
(1) SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER (SEE INSTRUCTION 5) |
|
|
|
|
|
By checking ONE of the following boxes below INSTEAD OF THE BOX UNDER “Shares Tendered at Price Determined Under the Tender Offer,” the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the purchase price determined by the Company for the shares is less than the price checked below. A STOCKHOLDER WHO DESIRES TO TENDER SHARES AT MORE THAN ONE PRICE MUST COMPLETE A SEPARATE LETTER OF TRANSMITTAL FOR EACH PRICE AT WHICH SHARES ARE TENDERED. The same shares cannot be tendered, unless previously properly withdrawn as provided in Section 4 of the Offer to Purchase, at more than one price. |
PRICE
(IN DOLLARS) PER SHARE AT WHICH SHARES
ARE BEING TENDERED
|
|
|
|
|
|
¨ $16.50 |
¨ $17.50 |
¨ $18.50 |
¨ $19.50 |
|
|
|
|
|
|
¨ $17.00 |
¨ $18.00 |
¨ $19.00 |
¨ $20.00 |
|
|
|
|
|
OR
|
|
|
|
|
(2) SHARES TENDERED AT PRICE DETERMINED UNDER THE TENDER OFFER (SEE INSTRUCTION 5) |
|
|
|
|
|
By checking the box below INSTEAD OF ONE OF THE BOXES UNDER “Shares Tendered at Price Determined by Stockholder,” the undersigned hereby tenders shares at the purchase price, as the same shall be determined by the Company in accordance with the terms of the Offer. For purposes of determining the purchase price, those shares that are tendered by the undersigned agreeing to accept the purchase price determined in the Offer will be deemed to be tendered at the minimum price. |
|
|
|
|
|
¨ The undersigned wants to maximize the chance of having the Company purchase all of the shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this box instead of one of the price boxes above, the undersigned hereby tenders shares at, and is willing to accept, the purchase price determined by the Company in accordance with the terms of the Offer. THE UNDERSIGNED SHOULD UNDERSTAND THAT THIS ELECTION MAY LOWER THE PURCHASE PRICE AND COULD RESULT IN THE TENDERED SHARES BEING PURCHASED AT THE MINIMUM PRICE OF $16.50 PER SHARE. |
|
|
|
|
CHECK ONLY ONE BOX UNDER (1) OR (2) ABOVE. IF MORE THAN ONE BOX IS CHECKED ABOVE, OR IF NO BOX IS CHECKED, THERE IS NO VALID TENDER OF SHARES. |
|
|
ODD LOTS |
|
|
(See Instruction 6 of the Letter of Transmittal) |
|
As described in Section 1 of the Offer to Purchase, under certain conditions, holders holding fewer than 100 shares may have their shares accepted for payment before any proration of the purchase of other tendered shares. This preference is not available to partial tenders or to beneficial or record holders of an aggregate of 100 or more shares. Accordingly, this section is to be completed only if shares are being tendered by or on behalf of a person owning, beneficially or of record, fewer than 100 shares in the aggregate. The undersigned either (check one box):
|
|
|
|
|
|
o |
is the beneficial or record owner of an aggregate of fewer than 100 shares, all of which are being tendered; or |
4
|
|
|
|
|
|
¨ |
is a broker, dealer, commercial bank, trust company, or other nominee that (a) is tendering for the beneficial owner(s), shares with respect to which it is the record holder, and (b) believes, based upon representations made to it by the beneficial owner(s), that each such person is the beneficial owner of an aggregate of fewer than 100 shares and is tendering all of the shares. |
|
|
|
|
|
In addition, the undersigned is tendering either (check one box): |
||
|
|
|
|
|
|
¨ |
at the purchase price, as the same will be determined by the Company in accordance with the terms of the Tender Offer (persons checking this box need not indicate the price per share above); or |
|
|
|
|
|
|
¨ |
at the price per share indicated above in the section captioned “Price (In Dollars) per Share at Which Shares Are Being Tendered.” |
CONDITIONAL TENDER
(See Instruction 13)
A tendering stockholder may condition his or her tender of shares upon the Company purchasing a specified minimum number of the shares tendered, all as described in Section 6 of the Offer to Purchase. Unless at least the minimum number of shares you indicate below is purchased by the Company pursuant to the terms of the Offer, none of the shares tendered by you will be purchased. It is the tendering stockholder’s responsibility to calculate the minimum number of shares that must be purchased if any are purchased, and each stockholder is urged to consult his or her own tax advisor before completing this section. Unless this box has been checked and a minimum specified, your tender will be deemed unconditional
|
|
|
|
|
|
¨ |
The minimum number of shares that must be purchased from me, if any are purchased from me, is: ____________ shares. |
|
|
|
|
|
If, because of proration, the minimum number of shares designated will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering stockholder must have tendered all of his or her shares and checked this box: |
||
|
|
|
|
|
|
¨ |
The tendered shares represent all shares held by the undersigned. |
5
Ladies and Gentlemen:
The undersigned hereby tenders to Steven Madden, Ltd. (the “Company”) the above-described shares of common stock, including the associated purchase rights (the “rights”) issued under the Rights Agreement, dated as of November 14, 2001, between the Company and American Stock Trust & Transfer Company, as Rights Agent, par value $0.0001 per share (the “shares”) of the Company, at the price per share indicated in this Letter of Transmittal, net to the seller in cash, less any applicable withholding taxes and without interest, on the terms and subject to the conditions set forth in the Company’s Offer to Purchase dated February 20, 2008 (the “Offer to Purchase”), and this Letter of Transmittal (which, together with any amendments or supplements thereto or hereto, collectively constitute the “Offer”), receipt of which is hereby acknowledged. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company and shall include the rights; and unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
Subject to and effective on acceptance for payment of, and payment for, the shares tendered with this Letter of Transmittal in accordance with the terms and subject to the conditions of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company, all right, title and interest in and to all the shares that are being tendered hereby and irrevocably constitutes and appoints American Stock Transfer & Trust Company (the “Depositary”), the true and lawful agent and attorney-in fact of the undersigned, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to the full extent of the undersigned’s rights with respect to such shares, to (a) deliver certificates for such shares or transfer ownership of such shares on the account books maintained by the book-entry transfer facility, together, in any such case, with all accompanying evidences of transfer and authenticity to, or upon the order of the Company, (b) present such shares for cancellation and transfer on the Company’s books and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such shares, all in accordance with the terms and subject to the conditions of the Offer.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the shares tendered hereby and that, when the same are accepted for purchase by the Company, the Company will acquire good title thereto, free and clear of all security interests, liens, restrictions, claims and encumbrances, and the same will not be subject to any adverse claim or right. The undersigned will, on request by the Depositary or the Company, execute and deliver any additional documents deemed by the Depositary or the Company to be necessary or desirable to complete the sale, assignment and transfer of the shares tendered hereby, all in accordance with the terms of the Offer.
All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall be binding on the successors, assigns, heirs, personal representatives, executors, administrators and other legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that the valid tender of shares pursuant to any of the procedures described in Section 3 of the Offer to Purchase and in the instructions to this Letter of Transmittal will constitute a binding agreement between the undersigned and the Company on the terms and subject to the conditions of the Offer.
It is a violation of Rule 14e-4 promulgated under the Exchange Act (as defined in the Offer to Purchase) for a person acting alone or in concert with others, directly or indirectly, to tender shares for such person’s own account unless at the time of tender and at the Expiration Time such person has a “net long position” in (a) the shares that is equal to or greater than the amount tendered and will deliver or cause to be delivered such shares for the purpose of tender to the Company within the period specified in the Offer, or (b) other securities immediately convertible into, exercisable for or exchangeable into shares (“Equivalent Securities”) that is equal to or greater than the amount tendered and, upon the acceptance of such tender, will acquire such shares by conversion, exchange or exercise of such Equivalent Securities to the extent required by the terms of the Offer and will deliver or cause to be delivered such shares so acquired for the purpose of tender to the Company within the period specified in the Offer. Rule 14e-4 also provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person. A tender of shares made pursuant to any method of delivery set forth in this Letter of Transmittal will constitute the undersigned’s representation and warranty to the Company that (a) the undersigned has a “net long position” in shares or Equivalent Securities at least equal to the shares being tendered within the meaning of Rule 14e-4, and (b) such tender of shares complies with Rule 14e-4.
6
The undersigned understands that the Company will, upon the terms and subject to the conditions of the Offer, determine a single per share purchase price, not greater than $20.00 nor less than $16.50 per share, that it will pay for shares properly tendered and not properly withdrawn prior to the Expiration Time in the Offer, taking into account the number of shares so tendered and the prices specified by tendering stockholders. The undersigned understands that the Company will select the lowest purchase price (in multiples of $.50) within the price range specified above that will allow it to purchase 2,600,000 shares, or such lesser number of shares as are properly tendered and not properly withdrawn, at prices not greater than $20.00 nor less than $16.50 per share, in the Offer, subject to its right to increase the total number of shares purchased to the extent permitted by law. The undersigned understands that all shares properly tendered at prices at or below the purchase price and not properly withdrawn will be purchased at the purchase price, net to the seller in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer, including its proration provisions and conditional tender provisions, and that the Company will return at its expense all other shares, including shares tendered at prices greater than the purchase price and not properly withdrawn and shares not purchased because of proration or conditional tenders, promptly following the Expiration Time.
In participating in the Offer, the undersigned acknowledges that: (1) the Offer is established voluntarily by the Company, it is discretionary in nature and it may be extended, modified, suspended or terminated by the Company as provided in the Offer; (2) the undersigned is voluntarily participating in the Offer; (3) the future value of the Company’s common stock is unknown and cannot be predicted with certainty; (4) the undersigned has read and understands the Offer; (5) the undersigned has consulted his or her tax and financial advisors with regard to how the Offer will impact his or her personal situation; (6) any foreign exchange obligations triggered by the undersigned’s tender of shares or the recipient of proceeds are solely his or her responsibility; and (7) regardless of any action that the Company takes with respect to any or all income/capital gains tax, social security or insurance, transfer tax or other tax-related items (“Tax Items”) related to the offer and the disposition of shares, the undersigned acknowledges that the ultimate liability for all Tax Items is and remains his or her sole responsibility. In that regard, the undersigned authorizes the Company to withhold all applicable Tax Items legally payable by the undersigned.
The undersigned understands that the Company holds certain personal information about him or her, including, as applicable, but not limited to, the undersigned’s name, home address and telephone number, date of birth, social security or insurance number or other identification number, nationality, any shares of stock held in the Company, details of all options or any other entitlement to shares outstanding in the undersigned’s favor, for the purpose of implementing, administering and managing his or her stock ownership (“Data”). The undersigned understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Offer, that these recipients may be located in his or her country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than his or her country. The undersigned understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting the Company. The undersigned authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the Offer, including any requisite transfer of such Data as may be required to a broker or other third party with whom held any shares of stock. The undersigned understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Offer. The undersigned understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company. The undersigned understands, however, that refusing or withdrawing his or her consent may affect his or her ability to participate in the Offer. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the undersigned understands that he or she may contact the Company.
7
Unless otherwise indicated herein under “Special Payment Instructions,” please issue the check for payment of the purchase price and/or return any certificates for shares not tendered or accepted for payment in the name(s) of the registered holder(s) appearing under “Description of Shares Tendered.” Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail the check for payment of the purchase price and/or return any certificates for shares not tendered or accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing under “Description of Shares Tendered.” In the event that both the “Special Delivery Instructions” and the “Special Payment Instructions” are completed, please issue the check for payment of the purchase price and/or return any certificates for shares not tendered or accepted for payment (and any accompanying documents, as appropriate) in the name(s) of, and deliver such check and/or return such certificates (and any accompanying documents, as appropriate) to, the person or persons so indicated. Please credit any shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at the book-entry transfer facility designated above. The undersigned recognizes that the Company has no obligation pursuant to the “Special Payment Instructions” to transfer any shares from the name of the registered holder(s) thereof if the Company does not accept for payment any of the shares so tendered.
NOTE: SIGNATURE MUST BE PROVIDED ON PAGE 10 BELOW.
8
|
|
|
|
|
(Signature(s) of Stockholder(s) |
Dated: __________________, 2008
(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s) for the shares or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please provide the following information and see Instruction 6.)
|
|
|
Name(s) |
|
|
|
|
|
|
|
|
|
(Please Print) |
|
|
|
|
Capacity (full title) |
|
|
|
|
|
|
|
|
Address |
|
|
|
|
|
(Include Zip Code) |
|
|
|
|
|
|
|
|
|
|
|
Daytime Area Code and Telephone Number: |
|
|
|
|
|
|
|
|
Taxpayer Identification or Social Security Number: |
|
|
|
|
(COMPLETE AND SIGN ACCOMPANYING SUBSTITUTE FORM W-9)
GUARANTEE OF SIGNATURE(S)
(If Required — See Instructions 1 and 6)
|
|
|
|
Authorized Signature: |
|
|
|
|
|
|
|
|
Name(s): |
|
|
|
|
|
(Please Print) |
|
|
|
|
|
Name of Firm: |
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
Address: |
|
|
|
|
|
(Include Zip Code) |
|
|
|
|
|
Daytime Area Code and Telephone Number: |
|
|
|
|
Dated: ______________, 2008
9
SPECIAL
PAYMENT INSTRUCTIONS
(See Instructions 1, 6, 7 and 8)
To be completed ONLY if certificates for shares not tendered or not accepted for payment and/or the check for payment of the purchase price of shares accepted for payment are to be issued in the name of someone other than the undersigned, or if shares tendered hereby and delivered by book-entry transfer which are not purchased are to be returned by crediting them to an account at the book-entry transfer facility other than the account designated above.
|
|
|
|
|
|
|
Issue: |
o |
Check |
o |
Certificate(s) to: |
|
|
|
|
Name |
|
|
|
|
|
(Please Print) |
|
|
|
|
|
Address |
|
|
|
|
|
(Include Zip Code) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Taxpayer
Identification or Social Security Number) |
|
Check and complete if applicable:
|
|
|
|
o Credit shares delivered by book-entry transfer and not purchased to the account set forth below: |
|
|
Account Number: |
|
|
|
|
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 6, 7 and 8)
To be completed ONLY if certificates for shares not tendered or not accepted for payment and/or the check for payment of the purchase price of shares accepted for payment are to be sent to someone other than the undersigned or to the undersigned at an address other than that above.
|
|
|
|
|
|
|
Issue: |
o |
Check |
o |
Certificate(s) to: |
|
|
|
|
Name |
|
|
|
|
|
(Please Print) |
|
|
|
|
|
Address |
|
|
|
|
|
(Include Zip Code) |
|
|
|
|
|
|
|
(ALSO COMPLETE AND SIGN SUBSTITUTE FORM W-9 BELOW)
10
PAYER’S NAME: AMERICAN STOCK TRANSFER & TRUST COMPANY OF NEW YORK
|
|
|
|
|
|
|
|
|
|||
|
SUBSTITUTE |
Part 1—PLEASE PROVIDE YOUR TAXPAYER IDENTIFICATION NUMBER IN THE BOX AT THE RIGHT AND CERTIFY BY SIGNING AND DATING BELOW |
|
|
|
|
|
|
|
|
|
|
|
|
|
Social Security Number(s) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employer Identification Number(s) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Department
of the |
Part 2—Certification-Under penalties of perjury, I certify that: (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me); (3) I am not subject to backup withholding because (a) I am exempt from withholding or (b) I have not been notified by the Internal Revenue Service (the “IRS”) that I am subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified me that I am no longer subject to backup withholding; and (4) I am a U.S. person (including a U.S. resident alien) |
|
Part 3 Awaiting TAXPAYER IDENTIFICATION Part 4 Exempt TAXPAYER IDENTIFICATION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payer’s
Request for |
Certification Instructions—You must cross out item (2) in Part 2 above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax returns. However, if after being notified by the IRS stating that you were subject to backup withholding you received another notification from the IRS stating you are no longer subject to backup withholding, do not cross out item (2). If you are exempt from backup withholding, check the box in Part 4. |
|||
|
|
|
|||
|
|
Signature: |
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
Date: _____________, 2008 |
|||
|
|
|
|||
|
|
Name (Please Print): |
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
Address (Please Print): |
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
|
|
|||
|
NOTE: |
FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION. |
|||
|
|
|
|||
|
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE |
||||
|
|
||||
|
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER |
||||
|
|
||||
|
I certify under penalties of perjury that a taxpayer identification number has not been issued to me and that either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number to the Payer by the time of payment, 28% of all reportable payments made to me will be withheld. |
||||
|
|
|
|
|
|
|
Signature: |
|
|
Date: |
|
|
|
|
|
|
|
11
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal if either (a) this Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Instruction 1, includes any participant in the book-entry transfer facility’s system whose name appears on a security position listing as the owner of the shares) of shares tendered herewith, unless such registered holder(s) has completed either the box entitled “Special Payment Instructions” or the box entitled “Special Delivery Instructions” on this Letter of Transmittal or b) such shares are tendered for the account of a firm that is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Securities Transfer Agents Medallion Program, the New York Stock Exchange, Inc. Medallion Signature Program or the Stock Exchange Medallion Program, or is otherwise an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each, an “eligible institution”). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an eligible institution. Stockholders may also need to have any certificates they deliver endorsed or accompanied by a stock power, and the signatures on these documents also may need to be guaranteed. See Instruction 6.
2. Requirements of Tender. This Letter of Transmittal is to be completed by stockholders either if certificates are to be forwarded herewith or, unless an agent’s message (as defined below) is utilized, if delivery of shares is to be made pursuant to the procedures for book-entry transfer set forth in Section 3 of the Offer to Purchase. For a stockholder validly to tender shares pursuant to the Offer, either (a) a Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary at one of its addresses set forth on the back of this Letter of Transmittal prior to the Expiration Time and either certificates for tendered shares must be received by the Depositary at one of such addresses or shares must be delivered pursuant to the procedures for book-entry transfer set forth herein (and a book-entry confirmation must be received by the Depositary), in each case prior to the Expiration Time, or (b) the tendering stockholder must comply with the guaranteed delivery procedures set forth below and in Section 3 of the Offer to Purchase.
Stockholders whose certificates for shares are not immediately available or who cannot deliver their certificates and all other required documents to the Depositary or complete the procedures for book-entry transfer prior to the Expiration Time may tender their shares by properly completing and duly executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Pursuant to those procedures, (a) tender must be made by or through an eligible institution, (b) a properly completed and duly executed Notice of Guaranteed Delivery, in the form provided by the Company, must be received by the Depositary prior to the Expiration Time and (c) the certificates for all tendered shares in proper form for transfer (or a book-entry confirmation with respect to all such shares), together with a Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary, in each case within three business days after the date of execution of the Notice of Guaranteed Delivery as provided in Section 3 of the Offer to Purchase. The term “agent’s message” means a message transmitted by the book-entry transfer facility to, and received by, the Depositary and forming a part of a book-entry confirmation, which states that such book-entry transfer facility has received an express acknowledgment from the participant in the book-entry transfer facility tendering the shares that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that the Company may enforce such agreement against such participant.
The method of delivery of shares, this Letter of Transmittal and all other required documents, including delivery through the book-entry transfer facility, is at the sole election and risk of the tendering stockholder. Shares will be deemed delivered only when actually received by the Depositary (including, in the case of a book-entry transfer, by book-entry confirmation). If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
12
Except as specifically provided by the Offer to Purchase, no alternative, conditional or contingent tenders will be accepted. No fractional shares will be purchased. All tendering stockholders, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance for payment of their shares.
3. Inadequate Space. If the space provided in the box entitled “Description of Shares Tendered” in this Letter of Transmittal is inadequate, the certificate numbers and/or the number of shares of common stock should be listed on a separate signed schedule attached hereto.
4. Partial Tenders (Not Applicable to Stockholders Who Tender by Book-Entry Transfer). If fewer than all the shares represented by any certificate submitted to the Depositary are to be tendered, fill in the number of shares that are to be tendered in the box entitled “Number of Shares Tendered.” In that case, if any tendered shares are purchased, new certificate (s) for the remainder of the shares that were evidenced by the old certificate(s) will be sent to the registered holder(s), unless otherwise provided in the appropriate box on this Letter of Transmittal, promptly after the acceptance for payment of, and payment for, the shares tendered herewith. All shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated.
5. Indication of Price at Which Shares are Being Tendered. For shares to be properly tendered, the stockholder MUST either (1) check the box indicating the price per share at which such stockholder is tendering shares under the section captioned “Price (in Dollars) per Share at Which Shares Are Being Tendered” (stockholders should understand that this election may lower the purchase price and could result in the tendered shares being purchased at the minimum price of $16.50 per share) or (2) check the box in the section captioned “Shares Tendered at Price Determined Under the Tender Offer” in order to maximize the chance of having the Company purchase all of the shares tendered (subject to the possibility of proration). For purposes of determining the purchase price, those shares that are tendered by stockholders agreeing to accept the purchase price determined in the Offer will be deemed to be tendered at the minimum price. Selecting option (1) could result in none of the stockholder’s tendered shares being purchased if the purchase price for the shares turns out to be less than the price selected by the stockholder. Selecting option (2) may lower the purchase price and could result in the stockholder receiving the minimum price of $16.50 per share. Only one box under (1) or (2) may be checked. If more than one box is checked, or if no box is checked, there is no proper tender of shares. A stockholder wishing to tender portions of such stockholder’s share holdings at different prices must complete a separate Letter of Transmittal for each price at which such stockholder wishes to tender each such portion of such stockholder’s shares. The same shares cannot be tendered, unless previously properly withdrawn as provided in Section 4 of the Offer to Purchase, at more than one price.
6. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the shares tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without any change whatsoever.
If any of the shares tendered hereby are owned of record by two or more joint owners, all such persons must sign this Letter of Transmittal.
If any shares tendered hereby are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, he or she should so indicate when signing, and proper evidence satisfactory to the Company of his or her authority to so act must be submitted with this Letter of Transmittal.
If this Letter of Transmittal is signed by the registered owner(s) of the shares tendered hereby, no endorsements of certificates or separate stock powers are required unless payment of the purchase price is to be made, or certificates for shares not tendered or accepted for payment are to be issued, to a person other than the registered owner(s). Signatures on any such certificates or stock powers must be guaranteed by an eligible institution.
13
If this Letter of Transmittal is signed by a person other than the registered owner(s) of the shares tendered hereby, or if payment is to be made or certificate(s) for shares not tendered or not purchased are to be issued to a person other than the registered owner(s), the certificate(s) representing such shares must be properly endorsed for transfer or accompanied by appropriate stock powers, in either case signed exactly as the name(s) of the registered owner(s) appear(s) on the certificates (s). The signature(s) on any such certificate(s) or stock power(s) must be guaranteed by an eligible institution. See Instruction 1.
7. Stock Transfer Taxes. The Company will pay any stock transfer taxes with respect to the transfer and sale of shares to it pursuant to the Offer. If, however, payment of the purchase price is to be made to, or if shares not tendered or accepted for payment are to be registered in the name of, any person(s) other than the registered owner(s), or if shares tendered hereby are registered in the name(s) of any person(s) other than the person(s) signing this Letter of Transmittal, the amount of any stock transfer taxes (whether imposed on the registered owner(s) or such person(s)) payable on account of the transfer to such person(s) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted with this Letter of Transmittal.
Except as provided in this Instruction 7, it will not be necessary for transfer tax stamps to be affixed to the certificates listed in this Letter of Transmittal.
8. Special Payment and Delivery Instructions. If a check for the purchase price of any shares accepted for payment is to be issued in the name of, and/or certificates for any shares not accepted for payment or not tendered are to be issued in the name of and/or returned to, a person other than the signer of this Letter of Transmittal or if a check is to be sent, and/or such certificates are to be returned, to a person other than the signer of this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed and signatures must be guaranteed as described in Instructions 1 and 6.
9. Irregularities. The Company will determine in its sole discretion all questions as to the purchase price, the number of shares to accept, and the validity, eligibility (including time of receipt), and acceptance for payment of any tender of shares. Any such determinations will be final and binding on all parties. The Company reserves the absolute right to reject any or all tenders of shares it determines not to be in proper form or the acceptance of which or payment for which may, in the Company’s opinion, be unlawful. The Company also reserves the absolute right to waive any defect or irregularity in the tender of any particular shares, and the Company’s interpretation of the terms of the Offer, including these instructions, will be final and binding on all parties. No tender of shares will be deemed to be properly made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as the Company shall determine. None of the Company, nor the Depositary, the Information Agent or any other person is or will be obligated to give notice of any defects or irregularities in tenders and none of them will incur any liability for failure to give any such notice.
10. 28% Backup Withholding. In order to avoid United States backup withholding at a rate of 28% on payments of cash pursuant to the Offer, a stockholder surrendering shares in the Offer must, unless an exemption applies, provide the Depositary with such stockholder’s correct taxpayer identification number (“TIN”), certify that the stockholder is a U.S. person on Substitute Form W-9 below in this Letter of Transmittal, certify under penalties of perjury that such TIN is correct and that the stockholder is not subject to backup withholding. If a stockholder does not provide a correct TIN or fails to provide the certifications described above, the Internal Revenue Service (the “IRS”) may impose a $50 penalty on such stockholder and payment of cash to such stockholder pursuant to the Offer may be subject to backup withholding of 28%.
Backup withholding is not an additional income tax. Rather, the amount of the backup withholding can be refunded or credited against the U.S. federal income tax liability of the person subject to the backup withholding, provided that the required information is given to the IRS.
A tendering stockholder is required to give the Depositary the TIN (i.e., employer identification number or social security number) of the record owner of the shares being tendered. If the shares are held in more than one name or are not in the name of the actual owner, consult the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for additional guidance on which number to report.
14
The box in part 3 of the Substitute Form W-9 may be checked if the tendering stockholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in part 3 is checked, the stockholder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the box in part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Depositary will withhold 28% on all payments made prior to the time a properly certified TIN is provided to the Depositary. However, these amounts will be refunded to such stockholder if a TIN is provided to the Depositary within 60 days.
Some stockholders (including, among others, all corporations and certain foreign individuals and entities) are not subject to backup withholding. Foreign stockholders should complete and sign the main signature form and the appropriate Form W-8, Certificate of Foreign Status, a copy of which may be obtained from the Depositary, in order to avoid backup withholding. See the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for more instructions.
11. Requests for Assistance or Additional Copies. Questions and requests for assistance or additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 may be directed to the Information Agent at its address set forth on the last page of this Letter of Transmittal.
12. Lost, Destroyed or Stolen Certificates. If your certificate(s) for part or all of your shares has been lost, stolen, destroyed or mutilated, you should check the box for “Lost Certificates” in the box on page 2 and promptly send the completed Letter of Transmittal to the Depositary. Upon receipt of your Letter of Transmittal, the Depositary will provide you with instructions on how to obtain a replacement certificate. You may be asked to post a bond to secure against the risk that the certificate may be subsequently recirculated. There may be a fee and additional documents may be required to replace lost certificates. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, stolen, destroyed or mutilated certificates have been followed. You are urged to send the properly completed Letter of Transmittal to the Depositary immediately to ensure timely processing of documentation. If you have questions, you may contact the Depositary by calling (877) 248-6417 (toll free) or (718) 921-8317.
13. Conditional Tenders. As described in Sections 1 and 6 of the Offer to Purchase, stockholders may condition their tenders on all or a minimum number of their tendered shares being purchased.
If you wish to make a conditional tender, you must indicate this in the box captioned “Conditional Tender” in this Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery. In the box in this Letter of Transmittal and, if applicable, in the Notice of Guaranteed Delivery, you must calculate and appropriately indicate the minimum number of shares that must be purchased from you if any are to be purchased from you.
As discussed in Sections 1 and 6 of the Offer to Purchase, proration may affect whether the Company accepts conditional tenders and may result in shares tendered pursuant to a conditional tender being deemed withdrawn if the required minimum number of shares would not be purchased. If, because of proration, the minimum number of shares that you designate will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, you must have tendered all your shares of common stock and checked the box so indicating. Upon selection by lot, if any, the Company will limit its purchase in each case to the designated minimum number of shares of common stock.
All tendered shares of common stock will be deemed unconditionally tendered unless the “Conditional Tender” box is completed.
The conditional tender alternative is made available so that a stockholder may seek to structure the purchase of shares of common stock pursuant to the Offer in such a manner that the purchase will be treated as a sale of such shares of common stock by the stockholder, rather than the payment of a dividend to the stockholder, for U.S. federal income tax purposes.. It is the tendering stockholder’s responsibility to calculate the minimum number of shares of common stock that must be purchased from the stockholder in order for the stockholder to qualify for sale rather than dividend treatment. Each stockholder is urged to consult his or her own tax advisor. See Section 15 of the Offer to Purchase.
15
14. Order of Purchase in Event of Proration. As described in Section 1 of the Offer to Purchase, stockholders may designate the order in which their shares are to be purchased in the event of proration. The order of purchase may have an effect on the U.S. federal income tax classification of any gain or loss on the shares purchased. See Sections 1 and 14 of the Offer to Purchase.
IMPORTANT. This Letter of Transmittal, together with any required signature guarantees, or, in the case of a book-entry transfer, an agent’s message, and any other required documents, must be received by the Depositary prior to the Expiration Time and either certificates for tendered shares must be received by the Depositary or shares must be delivered pursuant to the procedures for book-entry transfer, in each case prior to the Expiration Time, or the tendering stockholder must comply with the procedures for guaranteed delivery.
The Letter of Transmittal, certificates for shares and any other required documents should be sent or delivered by each stockholder of the Company or such stockholder’s bank, broker, dealer, trust company or other nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
American Stock Transfer & Trust Company
|
|
|
|
|
|
|
By Mail or Overnight Courier: |
By Hand: |
|
|
|
|||
|
|
American Stock Transfer & Trust Company |
American Stock Transfer & Trust |
|
|
|
Operations Center |
Company |
|
|
|
Attn: Reorganization Department |
Attn: Reorganization Department |
|
|
|
6201 15th Avenue |
59 Maiden Lane |
|
|
|
Brooklyn, NY 11219 |
New York, NY 10038 |
|
Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a valid delivery to the Depositary.
Questions and requests for assistance may be directed to the Information Agent at the address set forth below. Additional copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may be obtained from the Information Agent.
The Information Agent for the Offer is:
D. F. KING & CO., INC.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
Institutional Investors Call: (212) 493-6933
All Others Call Toll-Free (800) 901-0068
Email: info@dfking.com
16
Notice of Guaranteed Delivery
(Not to be used for Signature Guarantee)
for
Tender of Shares of Common Stock
(including the associated rights issued under
the Rights Agreement)
of
STEVEN MADDEN, LTD.
THE OFFER, PRORATION PERIOD AND
WITHDRAWAL RIGHTS WILL EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON
MARCH 18, 2008,
UNLESS THE OFFER IS EXTENDED.
As set forth in Section 3 of the Offer to Purchase (as defined below), this form must be used to accept the Offer (as defined below) if (1) certificates for your shares of common stock, par value $0.0001 per share, including the associated purchase rights issued under the Rights Agreement (the “rights”), of Steven Madden, Ltd., a Delaware corporation, are not immediately available, (2) the procedures for book-entry transfer cannot be completed on a timely basis or (3) time will not permit all required documents to reach the Depositary prior to the Expiration Time. This form may be delivered by hand or transmitted by facsimile transmission (if you are an eligible institution only) or mail to the Depositary. See Section 3 of the Offer to Purchase. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company and shall include the rights; and unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
The Depositary for the Offer is:
American Stock Transfer & Trust Company
|
|
|
|
|
|
|
By Mail or Overnight Courier: |
|
By Facsimile: |
|
By Hand: |
|
|
|
|
|
|
|
American Stock Transfer & Trust |
|
|
American Stock Transfer & Trust |
|
|
|
|
|
Delivery of this Notice of Guaranteed Delivery to an address, or transmission of instructions via a facsimile number, other than as set forth above will not constitute a valid delivery.
This Notice is not to be used to guarantee signatures. If a signature on a Letter of Transmittal is required to be guaranteed by an eligible institution under the instructions in the Letter of Transmittal, the signature guarantee must appear in the applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to Steven Madden, Ltd., a Delaware corporation (the “Company”), at the price per share indicated in this Notice of Guaranteed Delivery, on the terms and subject to the conditions set forth in the Offer to Purchase dated February 20, 2008 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), receipt of which is hereby acknowledged, the number of shares set forth below, all pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company and shall include the rights; and unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
|
|
|
|
|
|
Number of Shares to be tendered: ________shares. |
|
|
|
|
|
|
|
THE UNDERSIGNED IS TENDERING SHARES AS FOLLOWS (CHECK ONLY ONE BOX): |
|
|
|
|
|
|
|
(1) SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER (SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL) |
|
|
|
|
|
|
|
|
By checking ONE of the following boxes below INSTEAD OF THE BOX UNDER “Shares Tendered at Price Determined Under the Tender Offer,” the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the purchase price determined by the Company for the shares is less than the price checked below. A STOCKHOLDER WHO DESIRES TO TENDER SHARES AT MORE THAN ONE PRICE MUST COMPLETE A SEPARATE NOTICE OF GUARANTEED DELIVERY AND/OR LETTER OF TRANSMITTAL FOR EACH PRICE AT WHICH SHARES ARE TENDERED. The same shares cannot be tendered, unless previously properly withdrawn as provided in Section 4 of the Offer to Purchase, at more than one price. |
PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES
ARE BEING TENDERED
|
¨ $16.50 |
¨ $17.50 |
¨ $18.50 |
¨ $19.50 |
|
¨ $17.00 |
¨ $18.00 |
¨ $19.00 |
¨ $20.00 |
OR
|
|
|
|
|
|
|
(2) SHARES TENDERED AT PRICE DETERMINED UNDER THE TENDER OFFER (SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL) |
||
|
|
|
|
|
|
|
|
By checking the box below INSTEAD OF ONE OF THE BOXES UNDER “Shares Tendered at Price Determined by Stockholder,” the undersigned hereby tenders shares at the purchase price, as the same shall be determined by the Company in accordance with the terms of the Offer. For purposes of determining the purchase price, those shares that are tendered by the undersigned agreeing to accept the purchase price determined in the Offer will be deemed to be tendered at the minimum price. |
|
|
|
|
|
|
|
|
|
¨ |
The undersigned wants to maximize the chance of having the Company purchase all of the shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this box instead of one of the price boxes above, the undersigned hereby tenders shares at, and is willing to accept, the purchase price determined by the Company in accordance with the terms of the Offer. THE UNDERSIGNED SHOULD UNDERSTAND THAT THIS ELECTION MAY LOWER THE PURCHASE PRICE AND COULD RESULT IN THE TENDERED SHARES BEING PURCHASED AT THE MINIMUM PRICE OF $16.50 PER SHARE. |
|
|
|
|
|
|
|
CHECK ONLY ONE BOX UNDER (1) OR (2) ABOVE. IF MORE THAN ONE BOX IS CHECKED ABOVE, OR IF NO BOX IS CHECKED, THERE IS NO VALID TENDER OF SHARES. |
||
ODD LOTS
(See Instruction 6 of the Letter of Transmittal)
To be completed only if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares.
|
|
|
|
|
|
o |
By checking this box, the undersigned represents that the undersigned owns, whether beneficially or of record, an aggregate of fewer than 100 shares and is tendering all of those shares. |
|
|
|
|
|
|
In addition, the undersigned is tendering shares either (check one box): |
|
|
|
|
|
|
|
o |
at the purchase price, as the same will be determined by the Company in accordance with the terms of the Offer (persons checking this box need not indicate the price per share above); or |
|
|
|
|
|
|
o |
at the price per share indicated above in the section captioned “Price (In Dollars) per Share at Which Shares Are Being Tendered.” |
CONDITIONAL TENDER
(See Instruction 13 of the Letter of Transmittal)
A tendering stockholder may condition his or her tender of shares upon the Company purchasing a specified minimum number of the shares tendered, all as described in Section 6 of the Offer to Purchase. Unless at least the minimum number of shares you indicate below is purchased by the Company pursuant to the terms of the Offer, none of the shares tendered by you will be purchased. It is the tendering stockholder’s responsibility to calculate the minimum number of shares that must be purchased if any are purchased, and each stockholder is urged to consult his or her own tax advisor before completing this section. Unless this box has been checked and a minimum specified, your tender will be deemed unconditional.
¨ The minimum number of shares that must be purchased from me, if any are purchased from me, is __________________ shares.
If, because of proration, the minimum number of shares designated will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering stockholder must have tendered all of his or her shares and checked this box:
¨ The tendered shares represent all shares held by the undersigned.
|
|
|
|
|
|
|
|
Please type or print the information requested below: |
|
|
|
|
|
Certificate Nos. (If available): |
|
|
|
|
|
|
|
|
Name(s) of Record Holder(s): |
|
|
|
|
|
|
|
|
Address(es): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Zip Code: |
|
|
|
|
|
|
|
|
Daytime Area Code and Telephone Number: |
|
|
|
|
Date: ______________________, 2008
|
|
|
|
|
If shares will be tendered by book-entry transfer, check this box ¨ and provide the following information: |
|
|
|
|
|
|
Name of Tendering Institution: |
|
|
|
|
|
|
|
|
|
|
|
Account Number at Book-Entry Transfer Facility: |
|
|
|
|
|
THE GUARANTEE SET FORTH ON THE NEXT PAGE MUST BE COMPLETED.
GUARANTEE
(Not To Be Used For Signature Guarantee)
The undersigned is an “eligible guarantor institution,” as that term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), hereby guarantees (1) that the above named person(s) “own(s)” the shares tendered hereby within the meaning of Rule 14e-4 under the Exchange Act, (2) that such tender of shares complies with Rule 14e-4 under the Exchange Act and (3) to deliver to the Depositary either the certificates representing the shares tendered hereby, in proper form for transfer, or a book-entry confirmation (as defined in the Offer to Purchase) with respect to such shares, in any such case, together with a properly completed and duly executed Letter of Transmittal (or a facsimile thereof), with any required signature guarantees, or an agent’s message (as defined in the Offer to Purchase) in the case of a book-entry delivery, and any other required documents, within three business days (as defined in the Offer to Purchase) after the date hereof.
The eligible institution that completes this form must communicate the guarantee to the Depositary and must deliver the Letter of Transmittal and certificates for shares to the Depositary within the time period shown herein. Failure to do so could result in financial loss to such eligible institution.
Please type or print the information requested below:
|
|
|
|
Name of Firm: |
|
|
|
|
|
|
|
|
Authorized |
|
|
Signature: |
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
Address: |
|
|
|
|
|
|
|
|
Zip Code: |
|
|
|
|
|
|
|
|
Area Code and Telephone |
|
|
Number: |
|
|
|
|
Date: ______________________, 2008
Note: Do not send certificates for shares
with this Notice.
Certificates for Shares should be sent with your Letter of Transmittal.
Offer to Purchase for Cash
by
STEVEN MADDEN, LTD.
of
Up to 2,600,000 Shares of its Common Stock
(including the associated rights issued under
the Rights Agreement)
at a Purchase Price Not Greater Than $20.00 nor Less Than $16.50 Per Share
|
|
|
|
|
|
|
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE |
|
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MARCH 18, 2008 |
|
UNLESS THE OFFER IS EXTENDED. |
|
|
|
|
February 20, 2008
To Brokers, Dealers,
Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Steven Madden, Ltd., a Delaware corporation (the “Company”), to act as Information Agent in connection with its offer to purchase for cash up to 2,600,000 shares of its common stock, par value $0.0001 per share, including the associated rights issued under the Rights Agreement (the “rights”), at a price, net to the seller in cash, less any applicable withholding taxes and without interest, not greater than $20.00 nor less than $16.50 per share, upon the terms and subject to the conditions set forth in the Offer to Purchase dated February 20, 2008 (the “Offer to Purchase”) and the related Letter of Transmittal (which, together with any supplements or amendments thereto, collectively constitute the “Offer”). Please furnish copies of the enclosed materials to those of your clients for whom you hold shares registered in your name or in the name of your nominee. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company and shall include the rights; and unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
Enclosed with this letter are copies of the following documents:
|
|
|
|
|
|
1. |
Offer to Purchase dated February 20, 2008; |
|
|
|
|
|
|
2. |
Letter of Transmittal, for your use in accepting the Offer and tendering shares of and for the information of your clients, including the Substitute Form W-9; |
|
|
|
|
|
|
3. |
Form of letter that may be sent to your clients for whose account you hold shares registered in your name or in the name of a nominee, with an Instruction Form provided for obtaining such client’s instructions with regard to the Offer; |
|
|
|
|
|
|
4. |
Notice of Guaranteed Delivery with respect to shares, to be used to accept the Offer in the event you are unable to deliver the share certificates, together with all other required documents, to the Depositary before the Expiration Time, or if the procedure for book-entry transfer cannot be completed before the Expiration Time; and |
|
|
|
|
|
|
5. |
Return envelope addressed to American Stock Transfer & Trust Company as the Depositary. |
Certain conditions to the Offer are described in Section 7 of the Offer to Purchase.
We urge you to contact your clients promptly. Please note that the Offer, proration period and withdrawal rights will expire at 12:00 midnight, New York City time, on March 18, 2008 unless the offer is extended.
Under no circumstances will interest be paid on the purchase price of the shares regardless of any extension of, or amendment to, the Offer or any delay in paying for such shares.
The Company will not pay any fees or commissions to any broker or dealer or other person (other than the Depositary and Information Agent as described in the Offer to Purchase) in connection with the solicitation of tenders of shares pursuant to the Offer. However, the Company will, on request, reimburse you for customary mailing and handling expenses incurred by you in forwarding copies of the enclosed Offer materials to your clients. The Company will pay or cause to be paid any stock transfer taxes applicable to its purchase of shares pursuant to the Offer, except as otherwise provided in the Offer to Purchase and Letter of Transmittal (see Instruction 7 of the Letter of Transmittal).
Questions and requests for additional copies of the enclosed material may be directed to us at our address and telephone number set forth on the back cover of the Offer to Purchase.
|
|
|
|
|
Very truly yours, |
|
|
|
|
|
D.F. King & Co., Inc. |
Nothing contained in this letter or in the enclosed documents shall render you or any other person the agent of the Company, the Depositary, the Information Agent or any affiliate of any of them or authorize you or any other person to give any information or use any document or make any statement on behalf of any of them with respect to the Offer other than the enclosed documents and the statements contained therein.
Offer to Purchase for Cash
by
STEVEN MADDEN, LTD.
of
Up to 2,600,000 Shares of its Common Stock
(including the associated rights issued under
the Rights Agreement)
at a Purchase Price Not Greater Than $20.00 nor Less Than $16.50 Per Share
|
|
|
|
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL
EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MARCH 18, 2008
UNLESS THE OFFER IS EXTENDED.
|
|
|
|
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated February 20, 2008 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), in connection with the offer by Steven Madden, Ltd., a Delaware corporation (the “Company”), to purchase for cash up to 2,600,000 shares of its common stock, par value $0.0001 per share, including the associated rights issued under the Rights Agreement (the “rights”), at a price not greater than $20.00 nor less than $16.50 per share, net to the seller in cash, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer. Unless the context otherwise requires, all references to shares shall refer to the common stock of the Company and shall include the rights; and unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
On the terms and subject to the conditions of the Offer, the Company will determine a single per share price, not greater than $20.00 nor less than $16.50 per share, net to the seller in cash, less any applicable withholding taxes and without interest, that it will pay for shares properly tendered and not properly withdrawn in the Offer, taking into account the total number of shares tendered and the prices specified by tendering stockholders. After the Offer expires, the Company will look at the prices chosen by stockholders for all of the shares properly tendered. The Company will then select the lowest purchase price (in multiples of $0.50) within the price range specified above that will allow it to purchase 2,600,000 shares. If fewer shares are properly tendered, the Company will select the price that will allow it to purchase all the shares that are properly tendered and not properly withdrawn. The Company will purchase all shares properly tendered before the Expiration Time (as defined in the Offer to Purchase) at or below the purchase price and not properly withdrawn at the purchase price the Company selects, net to the seller in cash, less any applicable withholding tax and without interest, on the terms and subject to the conditions of the Offer, including its proration provisions, “odd lot” priority, and conditional tender provisions. All shares acquired in the Offer will be acquired at the same purchase price. The Company reserves the right, in its sole discretion, to purchase more than 2,600,000 shares in the Offer, subject to applicable law. The Company will return shares tendered at prices greater than the purchase price and shares not purchased because of proration provisions or conditional tenders to the tendering stockholders at the Company’s expense promptly after the Offer expires. See Sections 1 and 3 of the Offer to Purchase.
If the number of shares properly tendered is less than or equal to 2,600,000 shares (or such greater number of shares as the Company may elect to purchase pursuant to the Offer, subject to applicable law), the Company will, on the terms and subject to the conditions of the Offer, purchase at the purchase price selected by the Company all shares so tendered.
On the terms and subject to the conditions of the Offer, if at the expiration of the Offer more than 2,600,000 shares (or such greater number of shares as the Company may elect to purchase, subject to applicable law) are properly tendered at or below the purchase price, the Company will buy shares first, from all holders who own beneficially or of record, fewer than 100 shares in the aggregate (an “Odd Lot Holder”) and who properly tender all of their shares at or below the purchase price selected by the Company and who do not properly withdraw them before the Expiration Time; second, from all other stockholders who properly tender shares at or below the purchase price selected by the Company and who do not properly withdraw them before the Expiration Time, on a pro rata basis (except for stockholders who tendered shares conditionally for which the condition was not satisfied); and third, only if necessary to permit the Company to purchase 2,600,000 shares (or any such greater number of shares as the Company may elect to accept for payment, subject to applicable law), from holders who have tendered shares at or below the purchase price determined in the Offer conditionally (for which the condition was not initially satisfied) by random lot, to the extent feasible. To be eligible for purchase by random lot, shareholders whose shares are conditionally tendered must have tendered all of their shares. See Sections 1, 3 and 6 of the Offer to Purchase.
We are the owner of record of shares held for your account. As such, we are the only ones who can tender your shares, and then only pursuant to your instructions. We are sending you the Letter of Transmittal for your information only; you cannot use it to tender shares we hold for your account.
Please instruct us as to whether you wish us to tender any or all of the shares we hold for your account on the terms and subject to the conditions of the Offer.
Please note the following:
|
|
|
|
|
|
1. |
You may tender your shares at prices not greater than $20.00 nor less than $16.50 per share, as indicated in the attached Instruction Form, net to you in cash, less any applicable withholding taxes and without interest. |
|
|
|
|
|
|
2. |
You should consult with your broker or other financial or tax advisor on the possibility of designating the priority in which your shares will be purchased in the event of proration. |
|
|
|
|
|
|
3. |
The Offer is not conditioned on any minimum number of shares being tendered. The Offer is, however, subject to certain other conditions set forth in Section 7 of the Offer to Purchase. |
|
|
|
|
|
|
4. |
The Offer, withdrawal rights and proration period will expire at 12:00 midnight, New York City time, on March 18, 2008 unless the Company extends the Offer. |
|
|
|
|
|
|
5. |
As of February 14, 2008, there were 20,117,983 shares of the Company’s common stock issued and outstanding, not including 5,662,055 of the Company’s issued shares held in treasury. The 2,600,000 shares that the Company is offering to purchase hereunder represent approximately 12.9% of the total number of issued and outstanding shares of the Company’s common stock. |
|
|
|
|
|
|
6. |
Tendering stockholders who are registered stockholders or who tender their shares directly to American Stock Transfer & Trust Company will not be obligated to pay any brokerage commissions or fees to the Company, solicitation fees, or, except as set forth in the Offer to Purchase and the Letter of Transmittal, stock transfer taxes on the Company’s purchase of shares under the Offer. |
|
|
|
|
|
|
7. |
If you wish to tender portions of your shares at different prices, you must complete a separate Instruction Form for each price at which you wish to tender each such portion of your shares. We must submit separate Letters of Transmittal on your behalf for each price you will accept for each portion tendered. |
|
|
|
|
|
|
8. |
If you are an Odd Lot Holder and you instruct us to tender on your behalf all of the shares that you own at or below the purchase price before the expiration of the Offer and check the box captioned “Odd Lots” on the attached Instruction Form, the Company, on the terms and subject to the conditions of the Offer, will accept all such shares for purchase before proration, if any, of the purchase of other shares properly tendered at or below the purchase price and not properly withdrawn. |
|
|
|
|
|
|
9. |
If you wish to condition your tender upon the purchase of all shares tendered or upon the Company’s purchase of a specified minimum number of the shares which you tender, you may elect to do so and thereby avoid possible proration of your tender. The Company’s purchase of shares from all tenders which are so conditioned, to the extent necessary, will be determined by random lot. To elect such a condition, complete the section captioned “Conditional Tender” in the attached Instruction Form. |
If you wish to have us tender any or all of your shares, please so instruct us by completing, executing, detaching and returning to us the attached Instruction Form. If you authorize us to tender your shares, we will tender all your shares unless you specify otherwise on the attached Instruction Form.
Your prompt action is requested. Your Instruction Form should be forwarded to us in ample time to permit us to submit a tender on your behalf before the Expiration Time of the Offer. Please note that the Offer, proration period and withdrawal rights will expire at 12:00 midnight, New York City time, March 18, 2008 unless the Offer is extended.
The Offer is being made solely under the Offer to Purchase and the related Letter of Transmittal and is being made to all record holders of shares of the Company’s common stock. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of shares residing in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction.
The Company’s Board of Directors has approved the Offer. However, neither the Company nor any member of its Board of Directors, nor the Depositary or the Information Agent is making any recommendation to you as to whether to tender or refrain from tendering your shares or as to the purchase price or purchase prices at which you may choose to tender your shares. You must make your own decision as to whether to tender and, if so, how many shares to tender and the purchase price or purchase prices at which your shares should be tendered. In doing so, you should read carefully the information in the Offer to Purchase and in the related Letter of Transmittal, including the Company’s reasons for making the Offer. See Section 2 of the Offer to Purchase. You should discuss whether to tender your shares with your broker or other financial or tax advisor.
INSTRUCTION FORM WITH RESPECT TO
Offer to Purchase for Cash
by
STEVEN
MADDEN, LTD.
of
Up to 2,600,000 Shares of its Common Stock
(including the associated rights issued under
the Rights Agreement)
at a Purchase Price Not Greater Than $20.00 nor Less Than $16.50 Per Share
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated February 20, 2008 (the “Offer to Purchase”), and the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”), in connection with the offer by Steven Madden, Ltd., a Delaware corporation (the “Company”), to purchase for cash up to 2,600,000 shares of its common stock, par value $0.0001 per share, including the associated rights issued under the Rights Agreement (the “rights”), at a price, net to the seller in cash, less any applicable withholding tax and without interest, not greater than $20.00 nor less than $16.50 per share, specified by the undersigned, on the terms and subject to the conditions of the Offer. Unless the context otherwise requires, all references to the shares shall refer to the common stock of the Company and shall include the rights; and unless the rights are redeemed prior to the expiration of the Offer, a tender of the shares will constitute a tender of the rights.
The undersigned hereby instruct(s) you to tender to the Company the number of shares indicated below or, if no number is indicated, all shares you hold for the account of the undersigned, at the price per share indicated below, on the terms and subject to the conditions of the Offer.
In participating in the Offer to purchase for cash, the undersigned acknowledges that: (1) the Offer is established voluntarily by the Company, it is discretionary in nature and it may be extended, modified, suspended or terminated by the Company as provided in the Offer; (2) the undersigned is voluntarily participating in the Offer; (3) the future value of the Company’s common stock is unknown and cannot be predicted with certainty; (4) the undersigned has read and understands the Offer; (5) the undersigned has consulted his or her tax and financial advisors with regard to how the Offer will impact his or her personal situation; (6) any foreign exchange obligations triggered by the undersigned’s tender of shares or the recipient of proceeds are solely his or her responsibility; and (7) regardless of any action that the Company takes with respect to any or all income/capital gains tax, social security or insurance, transfer tax or other tax-related items (“Tax Items”) related to the offer and the disposition of shares, the undersigned acknowledges that the ultimate liability for all Tax Items is and remains his or her sole responsibility. In that regard, the undersigned authorizes the Company to withhold all applicable Tax Items legally payable by the undersigned.
The undersigned consents to the collection, use and transfer, in electronic or other form, of the undersigned’s personal data as described in this document by and among, as applicable, the Company, its subsidiaries, and third party administrators for the exclusive purpose of implementing, administering and managing his or her participation in the Offer.
The undersigned understands that the Company holds certain personal information about him or her, including, as applicable, but not limited to, the undersigned’s name, home address and telephone number, date of birth, social security or insurance number or other identification number, nationality, any shares of stock held in the Company, details of all options or any other entitlement to shares outstanding in the undersigned’s favor, for the purpose of implementing, administering and managing his or her stock ownership (“Data”). The undersigned understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the offer, that these recipients may be located in his or her country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than his or her country. The undersigned understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting the Company. The undersigned authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing his or her participation in the offer, including any requisite transfer of such Data as may be required to a broker or other third party with whom held any shares of stock. The undersigned understands that Data will be held only as long as is necessary to implement, administer and manage his or her participation in the Offer. The undersigned understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company. The undersigned understands, however, that refusing or withdrawing his or her consent may affect his or her ability to participate in the Offer. For more information on the consequences of his or her refusal to consent or withdrawal of consent, the undersigned understands that he or she may contact the Company.
Number of shares to be tendered by you for
the account of the undersigned: ____ shares*
* Unless otherwise indicated, it will be assumed that
all shares held by us for your account are to be tendered.
|
|
|
|
|
CHECK ONLY ONE BOX: |
|
|
|
|
|
(1) SHARES TENDERED AT PRICE DETERMINED BY STOCKHOLDER (SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL) |
|
|
|
|
|
By checking ONE of the following boxes below INSTEAD OF THE BOX UNDER “Shares Tendered at Price Determined Under the Tender Offer,” the undersigned hereby tenders shares at the price checked. This action could result in none of the shares being purchased if the purchase price determined by the Company for the shares less than the price checked below. A STOCKHOLDER WHO DESIRES TO TENDER SHARES AT MORE THAN ONE PRICE MUST COMPLETE A SEPARATE INSTRUCTION FORM FOR EACH PRICE AT WHICH SHARES ARE TENDERED. The same shares cannot be tendered, unless previously properly withdrawn as provided in Section 4 of the Offer to Purchase, at more than one price. |
PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES
ARE BEING TENDERED
|
¨ $16.50 |
¨ $17.50 |
¨ $18.50 |
¨ $19.50 |
|
¨ $17.00 |
¨ $18.00 |
¨ $19.00 |
¨ $20.00 |
OR
|
|
|
|
|
(2) SHARES TENDERED AT PRICE DETERMINED UNDER THE TENDER OFFER (SEE INSTRUCTION 5 OF THE LETTER OF TRANSMITTAL) |
|
|
|
|
|
By checking the box below INSTEAD OF ONE OF THE BOXES UNDER “Shares Tendered at Price Determined by Stockholder,” the undersigned hereby tenders shares at the purchase price, as the same shall be determined by the Company in accordance with the terms of the Offer. For purposes of determining the purchase price, those shares that are tendered by the undersigned agreeing to accept the purchase price determined in the Offer will be deemed to be tendered at the minimum price. |
oThe undersigned wants to maximize the chance of having the Company purchase all of the shares the undersigned is tendering (subject to the possibility of proration). Accordingly, by checking this box instead of one of the price boxes above, the undersigned hereby tenders shares at, and is willing to accept, the purchase price determined by the Company in accordance with the terms of the Offer. THE UNDERSIGNED SHOULD UNDERSTAND THAT THIS ELECTION MAY LOWER THE PURCHASE PRICE AND COULD RESULT IN THE TENDERED SHARES BEING PURCHASED AT THE MINIMUM PRICE OF $16.50 PER SHARE.
CHECK ONLY ONE BOX UNDER (1) OR (2) ABOVE. IF MORE THAN ONE BOX IS CHECKED ABOVE, OR IF NO BOX IS CHECKED, THERE IS NO VALID TENDER OF SHARES.
ODD LOTS
(See Instruction 6 of the Letter of Transmittal)
To be completed only if shares are being tendered by or on behalf of a person owning, beneficially or of record, an aggregate of fewer than 100 shares.
|
|
|
|
|
|
o |
By checking this box, the undersigned represents that the undersigned owns, whether beneficially or of |
|
|
|
record, an aggregate of fewer than 100 shares and is tendering all of those shares. |
|
|
|
|
|
|
In addition, the undersigned is tendering shares either (check one box): |
|
|
|
|
|
|
|
o |
at the purchase price, as the same will be determined by the Company in accordance with the terms of the |
|
|
|
Offer (persons checking this box need not indicate the price per share above); or |
|
|
|
|
|
|
o |
at the price per share indicated above in the section captioned “Price (In Dollars) per Share at Which |
|
|
|
Shares Are Being Tendered.” |
CONDITIONAL TENDER
(See Instruction 13 of the Letter of Transmittal)
A tendering stockholder may condition his or her tender of shares upon the Company purchasing a specified minimum number of the shares tendered, all as described in Section 6 of the Offer to Purchase. Unless at least the minimum number of shares you indicate below is purchased by the Company pursuant to the terms of the Offer, none of the shares tendered by you will be purchased. It is the tendering stockholder’s responsibility to calculate the minimum number of shares that must be purchased if any are purchased, and you are urged to consult your own tax advisor before completing this section. Unless this box has been checked and a minimum specified, the tender will be deemed unconditional.
o The minimum number of shares that must be purchased from me, if any are purchased from me, is _______________shares.
If, because of proration, the minimum number of shares designated will not be purchased, the Company may accept conditional tenders by random lot, if necessary. However, to be eligible for purchase by random lot, the tendering stockholder must have tendered all of his or her shares and checked this box:
o The tendered shares represent all shares held by the undersigned.
|
|
|
|
|
|
The method of delivery of this document is at the election and risk of the tendering stockholder. If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
|
|
|
|
Authorized |
|
|
|
|
Please type or print the information requested below:
|
|
|
|
|
Name: |
|
|
|
|
|
|
|
|
|
|
|
Address (including Zip Code): |
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
|
|
|
Area Code
and Telephone |
||
|
|
|
|
|
|
|
|
|
Taxpayer Identification or Social Security Number: |
|
|
|
|
|
|
Date: ______________________, 2008
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number for the Payee (You) to Give the Payer—Social Security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the payer. All “Section” references are to the Internal Revenue Code of 1986, as amended. “IRS” is the Internal Revenue Service.
|
|
|
|
|
|
|
|
|
|
|
|
|||
|
For this type of account: |
|
Give the
name and |
|
|
|
|
|
|
|
|
|
|
|
|
1. |
Individual |
|
The individual |
|
|
|
|
|
|
2. |
Two or more individuals (joint account) |
|
The actual owner of the account or, if combined funds, the first individual on the account1 |
|
|
|
|
|
|
3. |
Custodian account of a minor (Uniform Gift to Minors Act) |
|
The minor2 |
|
|
|
|
|
|
4. |
a. The usual revocable savings trust (grantor is also trustee) |
|
The grantor-trustee1 |
|
|
|
|
|
|
|
b. So-called trust account that is not a legal or valid trust under state law |
|
The actual owner1 |
|
|
|
|
|
|
5. |
Sole proprietorship or disregarded entity owned by an individual |
|
The owner3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For this type of account: |
|
Give the
name and |
|
|
|
|
|
|
|
|
|
|
|
|
6. |
Disregarded entity not owned by an individual |
|
The owner |
|
|
|
|
|
|
7. |
A valid trust, estate, or pension trust |
|
The legal entity4 |
|
|
|
|
|
|
8. |
Corporate or LLC electing corporate status on Form 8832 |
|
The corporation |
|
|
|
|
|
|
9. |
Association, club, religious, charitable, educational, or other tax-exempt organization |
|
The organization |
|
|
|
|
|
|
10. |
Partnership or multi-member LLC |
|
The partnership |
|
|
|
|
|
|
11. |
A broker or registered nominee |
|
The broker or nominee |
|
|
|
|
|
|
12. |
Account with the Department
of Agriculture in the name of a public entity (such as a state or local
government, school district, or prison) that receives agricultural program
payments |
|
The public entity |
|
|
|
|
|
|
|
|
|
1 |
List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person’s number must be furnished. |
|
|
|
|
2 |
Circle the minor’s name and furnish the minor’s social security number. |
|
|
|
|
3 |
You must show your individual name and you may also enter your business or “doing business as” name on the second name line. You may use either your social security number or your employer identification number (if you have one) but, the IRS encourages you to use your social security number. |
|
|
|
|
4 |
List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) |
|
|
|
|
NOTE: |
If no name is circled when there is more than one name listed, the number will be considered to be that of the first name listed. |
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you do not have a taxpayer identification number, apply for one immediately. To apply for a SSN, get Form SS-5, Application for a Social Security Card, from your local Social Security Administration office or get this form online at www.socialsecurity.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/businesses and clicking on Employer ID numbers under Related Topics. You can get Forms W-7 and SS-4 from the IRS by visiting www.irs.gov or calling 1 (800) TAX-FORM (1-800-829-3676).
Payees Exempt From Backup Withholding
Backup withholding is not required on payments made to the following payees:
|
|
|
|
1. |
An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7) if the account satisfies the requirements of Section 401(f)(2). |
|
|
|
|
2. |
The United States or any of its agencies or instrumentalities. |
|
|
|
|
3. |
A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities. |
|
|
|
|
4. |
A foreign government or any of its political subdivisions, agencies or instrumentalities. |
|
|
|
|
5. |
An international organization or any of its agencies or instrumentalities. |
|
|
|
|
Other payees that may be exempt from backup withholding include: |
|
|
|
|
|
6. |
A corporation. |
|
|
|
|
7. |
A foreign central bank of issue. |
|
|
|
|
8. |
A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. |
|
|
|
|
9. |
A futures commission merchant registered with the Commodity Futures Trading Commission. |
|
|
|
|
10. |
A real estate investment trust. |
|
|
|
|
11. |
An entity registered at all times during the tax year under the Investment Company Act of 1940. |
|
|
|
|
12. |
A common trust fund operated by a bank under Section 584(a). |
|
|
|
|
13. |
A financial institution. |
|
|
|
|
14. |
A middleman known in the investment community as a nominee or custodian. |
|
|
|
|
15. |
A trust exempt from tax under Section 664 or described in Section 4947. |
|
|
|
|
The chart below shows types of payments that may be exempt from backup withholding. The chart applies to the exempt recipients listed above, 1 through 15. |
|
|
|
|
|
|
|
|
If the payment is for … |
THEN the payment is exempt for … |
|
|
|
|
Interest and dividend payments |
All exempt recipients except for 9 |
|
|
|
|
Broker transactions |
Exempt recipients 1 through 13. Also, a person registered under the Investment Advisers Act of 1940 who regularly acts as a broker |
|
|
|
Exempt payees should complete a Substitute Form W-9 to avoid possible erroneous backup withholding. Furnish your taxpayer identification number, check the appropriate box for your status, check the box in Part 2 of the attached Substitute Form W-9 (“For Payees Exempt from Backup Withholding”), sign and date the form and return it to the payer. Foreign payees who are not subject to backup withholding should complete an appropriate Form W-8 and return it to the payer.
Privacy Act Notice. Section 6109 requires you to provide your correct taxpayer identification number to payers who must file information returns with the IRS to report interest, dividends, and certain other income paid to you. The IRS uses the numbers for identification purposes and to help verify the accuracy of your return. The IRS may also provide this information to the Department of Justice for civil or criminal litigation, and to cities, states, and the District of Columbia and U.S. possessions to carry out their tax laws. The IRS may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal nontax criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your taxpayer identification number whether or not you are required to file tax returns. Payers must generally withhold 28% of taxable interest, dividend, and certain other payments to a payee who does not give a taxpayer identification number to a payer. Certain penalties may also apply.
Penalties
(1) Failure to Furnish Taxpayer Identification Number. If you fail to furnish your correct taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
(2) Civil Penalty for False Information with Respect to Withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
-2-
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
Page 3
|
|
|
|
|
(3) Criminal Penalty for Falsifying Information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. |
|
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE |
|
|
||
|
(4) Misuse of Taxpayer Identification Numbers. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties. |
|
|
|
|
|
|
|
|
|
|
|
February 20, 2008 |
To Our Stockholders:
We are pleased to inform you that Steven Madden, Ltd. is offering to purchase 2,600,000 shares of its Common Stock from its stockholders through a tender offer at prices not greater than $20.00 nor less than $16.50 per share. The Company is conducting the tender offer through a procedure commonly referred to as a modified “Dutch Auction.” This procedure allows you to select the price within that price range at which you are willing to sell your shares to us. Based upon the number of shares tendered and the prices specified by the tendering stockholders, we will determine the single per share price within that price range that will allow us to buy 2,600,000 shares (or such lesser number of shares as are validly tendered). All of the shares that are validly tendered at prices at or below that purchase price will, subject to possible proration, be purchased at that purchase price, net to the selling stockholder. All other shares that have been tendered and not purchased will be returned to the stockholder. The tender offer is not conditioned on any minimum number of shares being tendered.
The tender offer provides stockholders the opportunity to sell shares for cash without the usual transaction costs.
The tender offer is explained in detail in the enclosed Offer to Purchase and Letter of Transmittal. If you wish to tender your shares, detailed instructions on how to tender shares are also in the enclosed materials. We encourage you to read these materials carefully before making any decision with respect to the tender offer. Neither the Company nor its Board of Directors makes any recommendation to any stockholder as to whether to tender or refrain from tendering shares.
Please note that the tender offer is scheduled to expire at midnight, New York City time, on March 18, 2008 unless extended by the Company. Questions regarding the tender offer may be directed to D.F. King & Co., Inc., the information agent for the tender offer, by calling collect at (212) 269-5550 or Toll-Free at (800) 901-0068.
|
|
|
|
|
Sincerely, |
|
|
|
|
Jamieson A. Karson |
|
|
|
Chairman and Chief Executive Officer |
