As filed with the Securities and Exchange Commission on November 19, 1996,
SECURITIES AND EXCHANGE COMMISSION
THE SECURITIES ACT OF 1933
STEVEN MADDEN, LTD.
(Exact name of registrant as specified in its charter)
New York 13-3588231
(State or other juris- (I.R.S. Employer
diction of organization) Identification No.)
52-16 Barnett Avenue, Long Island City, NY 11104
(Address of Principal Executive Offices) (Zip Code)
30,000 SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF STOCK OPTIONS
(Full title of the plan)
Steven Madden, Ltd.
52-16 Barnett Avenue
Long Island City, NY 11104
(Name and address of agent for service)
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount maximum aggregate Amount of
securities to be offering price offering registration
to be registered registered(1) per Share price(2) fee
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended ("Securities Act"), this registration statement also covers an
indeterminate number of shares as may be required by reason of any
stock dividend, recapitalization, stock split, reorganization, merger,
consolidation, combination or exchange of shares or other similar
change affecting the stock.
(2) The proposed maximum offering price per share is based upon the
designated exercise price as stated in the Stock Option Agreement
under which the option was granted.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents or portions thereof, as filed with the
Securities and Exchange Commission by Steven Madden, Ltd., a New York
corporation (the "Corporation"), are incorporated herein by reference:
(1) Quarterly Report on Form 10-QSB for the quarter ended September
(2) Quarterly Report on Form 10-QSB for the quarter ended June 30,
(3) Quarterly Report on Form 10-QSB for the quarter ended March 31,
(4) Annual Report on Form 10-KSB/A for the year ended December 31,
(5) The description of the Common Stock, par value $.0001 per share
("Common Stock"), of the Corporation contained in the Corporation registration
statement filed under Section 12 of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), subsequent to the effective date of this Registration
Statement and prior to the filing of a post-effective amendment which indicate
that all securities offered have been sold or which registers all securities
then remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be part thereof from the date of filing such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
ITEM 4. DESCRIPTION OF SECURITIES.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IV of the By-Laws provides as follows:
Indemnification. The Corporation shall (a) indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense of settlement of such action or suit, (b) indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he is or was a director
or officer of the Corporation, or served at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, for expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any such action, suit or proceeding, in each
case to the fullest extent permissible under the indemnification provisions of
Section 722 of the New York Business Corporation Law or any successor statute
and (c) advance reasonable and necessary expenses in connection with such
actions or suits, and not seek reimbursement of such expenses unless there is a
specific determination that the officer or director is not entitled to such
indemnification. The foregoing right of indemnification shall in no way be
exclusive of any other rights of indemnification to which any such persons may
be entitled, under any by-law, agreement, vote of shareholders or disinterested
directors or otherwise, and shall inure to the benefit of the heirs, executors
and administrators of such a person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as a part of this
Common Stock, 30,000 $5.50 (2) $165,000 $49.95
par value $.0001 per share
Exhibit No. Document
ITEM 9. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, the paragraphs (1)(i) and (1)(ii) do not apply if the
information is required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time be deemed to be the initial bona fide
offering thereof; and;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in item 6, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable, In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding, is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
Pursuant to the requirement of the Securities Act of 1933, as amended,
the Registrant, certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Long Island City, New York, on the 18th day of November,
STEVEN MADDEN, LTD
By: /s/Steven Madden
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendments thereto has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/Steven Madden Chairman of November 18, 1996
- ------------------------- the Board, President
Steven Madden and Chief Executive
/s/Rhonda Brown Chief Operating Officer November 18, 1996
- ------------------------- and Director
/s/Arvind Dharia Chief Financial and November 18, 1996
- ------------------------- Accounting Officer
Arvind Dharia and Director
/s/John L. Madden Director November 18, 1996
John L. Madden
/s/Peter Migliorini Director November 18, 1996
/s/Leg Wagner Director November 18, 1996
STEVEN MADDEN, LTD
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit No. Document
- ----------- --------
4.3 Employment Agreement dated as of May 6, 1996 between the
Corporation and Faye S. Weisberg.
4.4 Stock Option Agreement dated as of May 6, 1996 between the
Corporation and Faye S. Weisberg.
5.1 Opinion of Bernstein & Wasserman, LLP.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit
23.2 Consent of Richard A. Eisner & Company, LLP.
4.3 Employment Agreement dated as of May 6, 1996 between the Corporation and Faye S.
4.4 Stock Option Agreement dated as of May 6, 1996 between the Corporation and Faye S.
5.1 Opinion of Bernstein & Wasserman, LLP.
23.1 Consent of Bernstein & Wasserman, LLP (included in Exhibit 5.1).
23.2 Consent of Richard A. Eisner & Company, LLP.
EMPLOYMENT AGREEMENT, dated as of May , 1996, by and between Steven
Madden, Ltd., a New York corporation (the "Company"), and FAYE S. WEISBERG, an
individual residing at 440 East 62nd Street, Apt. 19F, New York, NY 10021 (the
W I T N E S E T H :
WHEREAS, the Company desires to secure the services of the Executive
upon the terms and conditions hereinafter set forth; and
WHEREAS, the Executive desires to render services to the Company upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties mutually agree as follows:
Section 1. Employment. The Company hereby employs Executive and the
Executive hereby accepts such employment, as the Vice President/National
Director of Sales of the Company's wholly owned subsidiary, Diva Acquisition
Corp., including the business formerly carried on by Diva International, Inc.
("Diva"), and the National Director of Catalog Sales for the Company and its
subsidiaries, subject to the terms and conditions set forth in this Agreement.
For purposes of this Agreement, Catalog Sales means sales through catalogs
produced or published by persons other than the Company or its subsidiaries.
Section 2. Duties. The Executive shall serve as the Vice
President/National Director of Sales for Diva and as National Director of
Catalog Sales for the Company and its subsidiaries and shall(i) be responsible
for supervising the national sales of Diva and national catalog sales for the
Company and its subsidiaries and developing a catalog for the Company and its
subsidiaries; and (ii) properly perform such duties as may be lawfully assigned
to her from time to time by the President and the Board of Directors of the
Company. If requested by the Company, the Executive shall serve on the Board of
Directors or any committee thereof without additional compensation. During the
term of this Agreement, the Executive shall devote all of her business time to
the performance of her duties hereunder unless otherwise authorized by the Board
of Directors; provided, however, that the Executive may devote reasonable
amounts of time, to the pursuit of Executive's personal business activities
which are wholly unrelated to the footwear industry, provided such activities
are not conducted during normal business hours or at such times as the Company
may require Executive's services.
Section 3. Term of Employment; Preliminary Period; Vacation.
(a) The term (the "Term") of the Executive's employment
shall be for a period of thirty six (36) months commencing on May 6, 1996 (the
"Start Date"), subject to earlier termination by the parties pursuant to
Sections 5 and 6 hereof. Unless otherwise specifically provided herein, all
compensation obligations commence as of the Start Date.
(b) Notwithstanding any other provisions in this Agreement,
during the ninety (90) day period following the Start Date, the Company or the
Executive may terminate this Agreement by delivering to the other party five
(5) days prior written notice of termination. Upon such termination, neither
party shall have any obligation to the other party, except that the Company
shall pay to the Executive (i) the Expense Reimbursement Amount (as hereinafter
defined), (ii) the Unpaid Salary Amount (as hereinafter defined) through the
termination date and (iii) the Initial Options (as hereinafter defined) which
shall remain exercisable for a period of one (1) year following the termination
(c) The Executive shall be entitled to four (4) weeks vacation
during each year of the Term.
Section 4. Compensation of Executive.
4.1 Salary. The Company shall pay to Executive a base
salary of One Hundred Thirty Thousand ($130,000) Dollars per
annum (the "Base Salary"), less such deductions as shall be required to be
withheld by applicable law and regulations. All salaries payable to Executive
shall be paid at such regular weekly, biweekly or semi-monthly time or times as
the Company makes payment of its regular payroll in the regular course of
business. Commencing on the first anniversary of the Start Date hereof, and on
each anniversary thereafter during the term of this Agreement, the Base Salary
shall be increased by 10%.
Prior to October 1, 1996, the Company and the Executive agree to
negotiate, in good faith, appropriate compensation to be paid to Executive in
consideration for Executive's services in the development of the Company's mail
order catalog which shall be developed for purposes of selling products of the
Company or its subsidiaries directly to the consumer.
4.2 Performance Bonus. During the term of this Agreement, the
Executive shall be entitled to receive a performance bonus (the "Performance
Bonus") based upon the Net Sales of Diva (including Diva Catalog Sales). For
purposes of this Agreement "Net Sales" shall be defined as gross sales less
returns, damaged goods and goods not delivered, all as determined in accordance
with the generally accepted accounting principles and as reflected on the
Company's quarterly financial statements.
Within 45 days following the end of each fiscal quarter beginning with the
quarter ending June 30, 1996, the Executive shall be entitled to receive a
Performance Bonus for that fiscal quarter equal to one percent (1%) of the
amount by which quarterly Net Sales exceed $750,000 and one half of one percent
(.5%) of the amount by which quarterly Net Sales exceed $2,500,000. An
adjustment shall be made at the end of the relevant fiscal year so that the
Performance Bonus paid to the Executive for the fourth fiscal quarter shall
result in the Executive receiving an annual Performance Bonus for that entire
fiscal year equal to one percent (1%) of the amount by which annual Net Sales
exceeds $3,000,000 and one half of one percent (.5%) of the amount by which
annual Net Sales exceeds $10,000,000. The Company shall pay the Performance
Bonus in cash. For purposes of this Agreement the term "fiscal year" shall mean
the calendar year.
4.3 Stock Options. (a) Upon the execution of this Agreement,
the Executive shall receive options to purchase 30,000 shares of Common Stock of
the Company at a price equal to $5.50 per share, which shall be immediately
exercisable and subject to the terms and conditions of an Option Agreement,
substantially in the form of Exhibit A attached hereto (the "Initial Options").
(b) In addition, the Executive shall be entitled to receive
options to purchase 30,000 shares of Common Stock of the Company for each
$2,000,000 by which Net Sales of Diva (including Diva Catalog Sales) for any
fiscal year exceed $3,000,000 (i.e. upon the achievement of annual Net Sales of
$5,000,000, $7,000,000, $9,000,000 and $11,000,000 (the "Net Sales Targets")),
up to a maximum aggregate grant of 120,000 options (the "Performance Options").
The Performance Options shall be issued as soon as possible, but no later than
within ninety (90) days following the end of the relevant fiscal year and shall
be exercisable at a price equal to the closing bid price of the Company's shares
of Common Stock on such date; provided however, that should one of the Net Sales
Targets be achieved prior to the fourth fiscal quarter, the appropriate number
of Performance Options shall be issued as soon as possible but no later than
forty five (45) days following the end of the fiscal quarter during which the
Net Sales Target was achieved at a price equal to the closing bid price of the
Company's shares of Common Stock on such date. Upon the issuance of all of the
Performance Options prior to the end of the Term, the Company and the Executive
shall negotiate in good faith towards the issuance of options or other
additional compensation for the Executive. The Performance Options will be
substantially in the form of Exhibit B and shall be registered by
the Company for sale to the public.
4.4 Sales Commission. Within forty-five (45) days following the
end of each fiscal quarter, the Executive shall be entitled to receive a sales
commission, in cash, equal to two percent (2%) of the total Gross Catalog Sales,
meaning gross orders booked or invoiced, without reduction for returns,
allowances or other items of the Company and any subsidiary during such fiscal
quarter (the "Sales Commission"). The Company shall advance to the Executive an
amount equal to $1,500 per month (the "Advance Amount"), such amounts to reduce
the Sales Commissions payable during the Term pursuant to the preceding
sentence. In the event that the aggregate amount of the Sales Commission earned
during the Term is not equal to or greater than the Advance Amount paid, then
the Executive shall not be required to repay the Advance Amount to the Company.
4.5 Expenses. During the Term, the Company shall promptly
reimburse the Executive for all reasonable and necessary travel expenses and
other disbursements incurred by the Executive on behalf of the Company, in
performance of the Executive's duties hereunder, assuming Executive has received
prior approval for such travel expenses and disbursements by the Company to the
4.6 Benefits. The Executive shall be permitted during the Term
to participate in any hospitalization or disability insurance plans, health
programs, pension plans, bonus plans or similar benefits that may be available
to other executives of the Company or Diva subject to such eligibility rules as
are applied to senior managers generally. In the event that the Executive
elects not to be covered the benefit plans provided by the Company to its other
executives, the Company shall pay to the Executive an amount equal to the amount
the Company would have paid on the Executive's behalf for such benefits, less
any amount which each participating executive is required to contribute for such
5. Disability of the Executive. If the Executive is
incapacitated or disabled by accident, sickness or otherwise so as to render
the Executive mentally or physically incapable of performing the services
required to be performed under this Agreement for a period of 180 days in any
period of 360 consecutive days (a "Disability"), the Company may, at the time or
any time thereafter, at its option, terminate the employment of the Executive
under this Agreement immediately upon giving the Executive written notice to
(a) The Company may terminate the employment of the Executive and
all of the Company's obligations under this Agreement at any time for Cause
(as hereinafter defined) by giving the Executive notice of such termination,
with reasonable specificity of the details thereof. "Cause" shall mean (i) the
Executive's misconduct which could reasonably be expected to have a material
adverse effect on the business and affairs of the Company, (ii) the Executive's
disregard of lawful instructions of the Company's Board of Directors or
President consistent with the Executive's position relating to the business of
the Company or neglect of duties or failure to act, which, in each case, could
reasonably be expected to have a material adverse effect on the business and
affairs of the Company, (iii) the Executive engages in conduct which is publicly
abusive to the Company's Chief Executive Officer or members of the Board of
Directors, (iv) the commission by the Executive of an act constituting common
law fraud, or a felony, or criminal act against the Company or any affiliate
thereof or any of the assets of any of them, (v) the Executive's abuse of
alcohol or other drugs or controlled substances, or conviction of a crime
involving moral turpitude, (vi) the Executive's material breach of any of the
agreements contained herein or (vii) the Executive's death or resignation
hereunder; provided however, that if the Executive resigned as a result of a
material breach by the Company of this Agreement, such resignation shall not be
considered "Cause" hereunder. A termination pursuant to Section 6(a)(i), (ii),
(iv), (v) (other than as a result of a conviction of a crime involving moral
turpitude) or (vi) shall take effect 60 days after the giving of the notice
contemplated hereby unless the Executive shall, during such 60-day period,
remedy to the reasonable satisfaction of the Board of Directors of the Company
the misconduct, disregard, abuse or breach specified in such notice; provided,
however, that such termination shall take effect immediately upon the giving of
such notice if the Board of Directors of the Company shall, in its reasonable
discretion, have determined that such misconduct, disregard, abuse or breach is
not remediable (which determination shall be stated in such notice). A
termination pursuant to Section 6(a)(iii), (v) (as a result of a conviction of a
crime involving moral turpitude) or (vii) shall take effect immediately upon the
giving of the notice contemplated hereby.
(b) The Company or the Executive may terminate the employment of
the Executive and all of the Company's obligations under this Agreement (except
as hereinafter provided) at any time during the Employment Period without Cause
by giving the
Executive or the Company, as appropriate, written notice of such termination, to
be effective 15 days following the giving of such written notice. For
convenience of reference, the date upon which any termination of the employment
of the Executive pursuant to Sections 5 or 6 shall be effective shall be
hereinafter referred to as the "Termination Date". In the event the Executive
resigns as a result of a material breach of the Agreement by the Company, such
resignation shall be treated as a termination by the Company other than for
Cause, as described in Section 7(c) provided the Executive shall have given the
Company thirty (30) days written notice, and the Company shall not have cured
the breach within such thirty (30) day period.
7. Effect of Termination of Employment.
(a) Upon the termination of the Executive's employment for
Cause, neither the Executive nor the Executive's beneficiaries or estate shall
have any further rights to compensation under this Agreement or any claims
against the Company arising out of this Agreement, except the right to receive
(i) the unpaid portion of the Base Salary provided for in Section 4.1, earned
through the Termination Date (the "Unpaid Salary Amount"), (ii) reimbursement
for any expenses for which the Executive shall not have theretofore been
provided in Section 4.6 (the "Expense Reimbursement Amount") and (iii) accrued
and unpaid amounts owed to the Executive under Sections 4.2 and 4.4 hereof
computed on a pro rata basis through the Termination Date.
(b) Upon the termination of the Executive's employment for a
Disability, neither the Executive nor the Executive's beneficiaries or estate
shall have any further rights to compensation under this Agreement or any claims
against the Company arising out of this Agreement, except the right to receive
(i) the Unpaid Salary Amount, (ii) the Expense Reimbursement Amount and (iii)
accrued and unpaid amounts owed to the Executive under Section 4.2, 4.3 and 4.4
hereof through the Termination Date, including a pro-rata entitlement to such
amounts equal to the award to which the Executive would have been entitled at
the end of the applicable fiscal period pro-rated for the period of the
Executive's employment during such fiscal period (collectively, the "Additional
(c) Upon the termination of the Executive's employment for
other than Cause or a Disability, neither the Executive nor the Executive's
beneficiaries or estate shall have any further rights to compensation under this
Agreement or any claims against the Company arising out of this Agreement,
except the Executive
shall have the right to receive (i) the Unpaid Salary Amount, (ii) the Expense
Reimbursement Amount, (iii) severance compensation equal to the Base Salary for
the term of this Agreement (as if this Agreement was not terminated), 50% of
which is payable on the Termination Date and 50% of which is payable in equal
monthly installments during the period commencing thirty (30) days following the
Termination Date and continuing for a period of twelve months thereafter, and
(iv) the Additional Payments.
Section 8. Disclosure of Confidential Information. Executive recognizes
that she has had and will continue to have access to secret and confidential
information regarding the Company, including but not limited to its customer
list, products, know-how, and business plans. Executive acknowledges that such
information is of great value to the Company, is the sole property of the
Company, and has been and will be acquired by her in confidence. In
consideration of the obligations undertaken by the Company herein, Executive
will not, at any time, during or after her employment hereunder, reveal, divulge
or make known to any person, any information acquired by Executive during the
course of her employment, which is treated as confidential by the Company,
including but not limited to its
customer list, not otherwise in the public domain, other than in the ordinary of
business during her employment hereunder. The provisions of this Section 8
shall survive Executive's employment hereunder.
Section 9. Covenant Not To Compete.
(a) Executive recognizes that the services to be performed by her
hereunder are special, unique and extraordinary. The parties confirm that it is
reasonably necessary for the protection of Company that Executive agree, and
accordingly, Executive does hereby agree, that she shall not, directly or
indirectly, at any time during the term of the Agreement and the "Restricted
Period" (as defined in Section 9(e) below):
(i) except as provided in Subsection (c) below, be
engaged in the sale, marketing or distribution of
footwear products or provide technical assistance,
advice or counseling regarding the footwear
industry in any state in the United States in
which the Company or any affiliate thereof is
engaged in business, either on her own behalf or
as an officer, director, stockholder, partner,
consultant, associate, employee, owner, agent,
creditor, independent contractor, or co-venturer
of any third party; or
(ii) employ or engage, or cause or authorize, directly
or indirectly, to be employed or engaged, for or
on behalf of herself or any third party, any
employee or agent of Company or any affiliate
(b) Executive hereby agrees that she will not, directly or indirectly,
for or on behalf of herself or any third party, at any time during the term of
the Agreement and during the Restricted Period solicit any customers of the
Company or any affiliate thereof.
(c) If any of the restrictions contained in this Section 9 shall be
deemed to be unenforceable by reason of the extent, duration or geographical
scope thereof, or otherwise, then the court making such determination shall
have the right to reduce such extent, duration, geographical scope, or other
provisions hereof, and in its reduced form this Section shall then be
enforceable in the manner contemplated hereby.
(d) This Section 9 shall not be construed to prevent Executive from
owning, directly or indirectly, in the aggregate, an amount not exceeding five
percent (5%) of the issued and outstanding voting securities of any class of
any company whose
voting capital stock is traded on a national securities exchange or on the
over-the-counter market other than securities of the Company.
(e) The term "Restricted Period," as used in this Section 9, shall
mean the period of Executive's actual employment hereunder plus (A) in the
event the Executive voluntarily terminates her employment after the Preliminary
Period other than a resignation as a result of a material breach of the
Agreement by the Company, six months, and (B) in the event the Executive's
employment is terminated without Cause or a Disability as described in Section
7(c) above, the period during which the Company is required to make continued
payments to the Executive pursuant to this Agreement; provided, however, that,
in the event the Executive waives, in writing, her right to receive such
continued payments, the Executive shall not be subject to this Section 9.
(f) The provisions of this Section 9 shall survive the end of the
Restricted Period as provided in Section 9(e) hereof.
Section 10. Miscellaneous.
10.1 Injunctive Relief. Executive acknowledges that the
services to be rendered under the provisions of this
Agreement are of a special, unique and extraordinary character and that it would
be difficult or impossible to replace such services. Accordingly, Executive
agrees that any breach or threatened breach by her of Sections 8 or 9 of this
Agreement shall entitle Company, in addition to all other legal remedies
available to it, to apply to any court of competent jurisdiction to seek to
enjoin such breach or threatened breach. The parties understand and intend that
each restriction agreed to by Executive hereinabove shall be construed as
separable and divisible from every other restriction, that the unenforceability
of any restriction shall not limit the enforceability, in whole or in part, of
any other restriction, and that one or more or all of such restrictions may be
enforced in whole or in part as the circumstances warrant. In the event that
any restriction in this Agreement is more restrictive than permitted by law in
the jurisdiction in which Company seeks enforcement thereof, such restriction
shall be limited to the extent permitted by law.
10.2 Assignments. Neither Executive nor the Company
may assign or delegate any of their rights or duties under this
Agreement without the express written consent of the other.
10.3 Entire Agreement. This Agreement constitutes and
embodies the full and complete understanding and agreement of the
parties with respect to Executive's employment by Company, supersedes all prior
understandings and agreements, whether oral or written, between Executive and
Company, and shall not be amended, modified or changed except by an instrument
in writing executed by the party to be charged. The invalidity or partial
invalidity of one or more provisions of this Agreement shall not invalidate any
other provision of this Agreement. No waiver by either party of any provision
or condition to be performed shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
10.4 Binding Effect. This Agreement shall inure to the benefit
of, be binding upon and enforceable against, the parties hereto and their
respective successors, heirs, beneficiaries and permitted assigns.
10.5 Headings. The headings contained in this Agreement are
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.6 Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been duly given when personally delivered, sent by
registered or certified mail,
return receipt requested, postage prepaid, or by private overnight mail service
(e.g. Federal Express) to the party at the address set forth above or to such
other address as either party may hereafter give notice of in accordance with
the provisions hereof. Notices shall be deemed given on the sooner of the date
actually received or the third business day after sending.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to such State's conflicts of laws provisions and each of the parties
hereto irrevocably consents to the jurisdiction and venue of the federal and
state courts located in the State of New York, County of New York.
10.8 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one of the same instrument.
10.9 Separability. If any of the restrictions contained in this
Agreement shall be deemed to be unenforceable by reason of the extent, duration
or geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration, geographical
scope, or other provisions hereof, and in its reduced form this Agreement shall
then be enforceable in the manner contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
STEVEN MADDEN, LTD.
Name: Steven Madden
Title: Chief Executive Officer
Faye S. Weisberg
NON QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the ____ day of May, 1996, (the "Grant
Date") is made and entered into by and between STEVEN MADDEN, LTD., a New York
corporation with its principal offices located at 540 Broadway, New York, New
York 10012 (the "Company") and Faye S. Weisberg whose address is 440 East 62nd
Street, Apt 19F, New York, NY 10021 (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the
granting to the Optionee of the option to purchase certain shares of common
stock, par value $.0001 per share ("Common Stock"); and
WHEREAS, the Optionee desires to accept the grant of such option,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Option. Subject to the provisions of this Agreement,
the Company hereby grants to the Optionee an option (the "Option") to purchase
from the Company at any time during the period commencing on the following Grant
and including November 2, 1997 (the "Termination Date") Thirty Thousand (30,000)
shares of Common Stock (the "Option Shares") at an exercise price of $5.50 per
share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Option shall terminate on the Termination Date.
Section 3. Corporate Events. In the event of a proposed liquidation
of the Company, a proposed sale of all or substantially all of its assets or its
Common Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Option shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Option in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Option. The Option may be exercised in whole
or in part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Option is
exercised) in immediately available funds. The Company shall cooperate to the
extent reasonably possible with the Optionee in an exercise pursuant to which
all or part of the Option Shares will be sold simultaneously with the exercise
of this Option with the broker-dealer participating in such sale being
irrevocably instructed to remit to the Company (or its transfer agent)
sufficient proceeds from the sale of such Option Shares to pay the exercise
price and any withholding taxes. All documentation and procedures to be
followed in connection with such a "cashless exercise" shall be approved in
advance by the Company, which approval shall be expeditiously provided and not
Section 5. Shares Certificates. Upon receipt of payment in full of
the Exercise Price, and after taking such steps as it deems necessary to satisfy
any withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Section 6. Restrictions; Registration Rights. The Option and the
Option Shares have not been registered under the Securities Act of 1933, as
amended (the "Act"). The Company
agrees to use its best efforts to register the Option Shares on Form S-8 with
the Securities and Exchange Commission within 90 days after the Grant Date.
Such Option Shares may not be sold, transferred, pledged, assigned or otherwise
disposed of at any time during the six (6) month period following the Grant
Section 7. Default of Optionee. Should the Optionee fail to pay the
appropriate Exercise Price in connection with an exercise of this Option, the
Option granted hereunder shall be null and void. This provision shall be in
addition and not in lieu of any other remedies which the Company may have at law
and/or in equity.
Section 8. Adjustments and Corporate Reorganizations. If the
outstanding shares of stock of the class then subject to this Option are changed
into or exchanged for a different number or kind of shares or securities or
other forms of property (including cash) or rights, as a result of one or more
reorganizations, recapitalizations, spin- offs, stock splits, reverse stock
splits, stock dividends or the like, appropriate adjustments shall be made in
the number and/or kind of shares or securities or other forms of property
(including cash) or rights for which this Option may thereafter
be exercised, all without any change in the aggregate exercise price applicable
to the unexercised portions of this Option, but with a corresponding adjustment
in the exercise price per share or other unit. No fractional share of stock
shall be issued under this Option or in connection with any such adjustment.
Such adjustments shall be made by or under authority of the Company's board of
directors whose determinations as to what adjustments shall be made, and the
extent thereof, shall be final, binding and conclusive.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to this Option are changed into
or exchanged for property (including cash), rights or securities not of the
Company's issue, or any combination thereof, or upon a sale of substantially all
the property of the Company to, or the acquisition of stock representing more
than eighty percent (80%) of the voting power of the stock of the Company then
outstanding by, another corporation or person, this Option shall terminate,
unless provision be made in writing in connection with such transaction for the
assumption of this Option, or the substitution for this Option of an option
covering the stock of a
successor employer corporation, or a parent or a subsidiary thereof, with
appropriate adjustments in accordance with the provisions hereinabove in this
Section 4 as to the number and kind of shares optioned and their exercise
prices, in which event this Option shall continue in the manner and under the
terms so provided.
If this Option shall terminate pursuant to the next preceding
paragraph, the Optionee or other person then entitled to exercise this Option
shall have the right, at such time prior to the consummation of the transaction
causing such termination as the Company shall designate, to exercise the
unexercised portions of this Option, including the portions thereof which would,
but for this Section 8 not yet be exercisable.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all
notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, which shall be addressed to each
party's respective address, as set forth in the first paragraph of this
Agreement, or to such other address as such party shall give to the other party
hereto by a notice given in accordance with this Section and, except as
otherwise provided in this Agreement, shall be effective when
deposited in the United States mail properly addressed and postage prepaid. If
such notice is sent other than by the United States mail, such notice shall be
effective when actually received by the party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may
not be assigned in whole or in part by Optionee except by will or the laws of
descent and distribution, and the Option is exercisable during Optionee's
lifetime only by the Optionee. This Agreement may be assigned by the Company
without the consent of the Optionee.
(c) Further Assurances. Both parties hereto shall execute and
deliver such other instruments and do such other acts as may be necessary to
carry out the intent and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms and
the singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
(f) Completeness and Modification. This Agreement constitutes the
entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto
concerning the grant of stock options to the Optionee. This Agreement shall
not terminated, except in accordance with its terms, or amended in writing
executed by all of the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause phrase or word or of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
(i) Construction. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(j) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the heirs, successors, estate and personal representatives of
the Optionee and upon the successors and assigns of the Company.
(k) Litigation-Attorney' Fees. In connection with any
litigation arising out of the enforcement of this Agreement or for its
interpretation, the prevailing party shall be entitled to recover its costs,
including reasonable attorneys' fees, at the trial and all appellate levels form
the other party hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth in the first paragraph of this Agreement above.
STEVEN MADDEN, LTD.
Faye S. Weisberg
November 18, 1996
Steven Madden, Ltd.
52-16 Barnett Avenue
Long Island City, NY 11105
Ladies and Gentlemen:
We have acted as counsel for Steven Madden, Ltd., a New York corporation
("Company"), in connection with a Registration Statement on Form S-8
("Registration Statement") being filed contemporaneously herewith by the
Company with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), covering an aggregate of 30,000
shares of the Company's common stock, $.0001 par value ("Common Stock"),
reserved for issuance upon the exercise of options heretofore granted pursuant
to that certain Option Agreement between the Company and Faye Weisberg (the
In that connection, we have examined the Certificate of Incorporation, as
amended, and the Amended and Restated By-Laws of the Company, the Registration
Statement, the Options, corporate proceedings of the Company relating to the
issuance of the Common Stock pursuant to the Options, and such other
instruments and documents as we have deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the
genuineness of all signatures and the conformity to original documents of all
copies furnished to us as original or photostatic copies. We have also assumed
that the corporate records of the Company include all corporate proceedings
taken by the Company to date.
Based upon and subject to the foregoing, we are of the opinion that the Common
Stock has been duly and validly authorized and, when issued and paid for as
described in the Option, will be duly and validly issued, fully paid and
We hereby consent to the use of this opinion as herein set forth as an exhibit
to the Registration Statement.
Very truly yours,
BERNSTEIN & WASSERMAN, LLP
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 being filed under the Securities Act of 1933 by Steven
Madden, Ltd. of our report dated February 23, 1996 relating to the financial
statements included in the December 31, 1995 Annual Report on Form 10-KSB/A, as
amended of Steven Madden, Ltd.
/s/ Richard A. Eisner, LLP
New York, New York
November 18, 1996