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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of Report: May 22, 2024
(Date
of earliest event reported)
STEVEN
MADDEN, LTD.
(Exact
name of registrant as specified in its charter)
Delaware |
|
000-23702 |
|
13-3588231 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
52-16
Barnett Avenue, Long Island City, New York |
|
11104 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (718) 446-1800
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock, par value $0.0001 per share |
|
SHOO |
|
The
NASDAQ Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
5.02. |
Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On
May 22, 2024, Steven Madden, Ltd. (the “Company”) held the Company’s 2024 Annual Meeting of the Stockholders (the “Annual
Meeting”). At the Annual Meeting, upon the recommendation of the Board of Directors of the Company, the stockholders of the Company
approved amendments to the Steven Madden, Ltd. 2019 Incentive Compensation Plan (the “Plan”) to increase the authorized number
of shares under the Plan. As amended, the Plan provides that up to a total of 19,000,000 shares of the Company’s common stock may
be issued thereunder. The Plan authorizes the grant to the Company’s eligible employees, including the Company’s officers
(who may include one or more of the Company’s named executive officers), consultants, non-employee directors, and prospective employees
and consultants of stock options, stock appreciation rights, shares of restricted stock, restricted stock units, performance shares,
other stock-based awards, and performance-based cash awards. The Company cannot currently determine the benefits, if any, to be paid
under the Plan in the future to any person eligible to receive awards. The Plan is described in detail in the Company’s proxy statement
relating to the Annual Meeting filed with the Securities and Exchange Commission on April 10, 2024 (the “Proxy Statement”).
The
foregoing description of the Plan does not purport to be complete and is qualified in its entirety by reference to the full text of the
Plan, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item
5.03. |
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On
May 22, 2024, upon the recommendation of the Board of Directors of the Company, the stockholders of the Company approved the Amended
and Restated Certificate of Incorporation of the Company (the “Certificate Amendment”) to allow for the exculpation of certain
of the Company’s officers and to include other minor, non-substantive revisions to the Company’s certificate of incorporation,
principally the integration of prior amendments into the certificate of incorporation, as well as technical and conforming changes and
modernizing updates. The Certificate Amendment is described in detail in the Proxy Statement. The Certificate Amendment became effective
upon filing with the Delaware Secretary of State on May 23, 2024.
The
foregoing description of the Certificate Amendment does not purport to be complete and is qualified in its entirety by reference to the
full text of the Certificate Amendment, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein
by reference.
Item
5.07. |
Submission
of Matters to a Vote of Security Holders. |
The
Company held the Annual Meeting on May 22, 2024. At the Annual Meeting, the stockholders of the Company voted on the following proposals:
Proposal
Number 1. To elect the eleven nominees named in the Proxy Statement to the Board of Directors of the Company to serve as directors
until the next annual meeting of the Company’s stockholders and until their successors are duly elected and qualified. Each nominee
for director was elected by a vote of the stockholders as follows:
Nominee |
|
Votes
For |
|
Votes
Withheld |
|
Broker
Non-Votes |
Edward
R. Rosenfeld |
|
67,895,848 |
|
1,201,934 |
|
1,401,337 |
Peter
A. Davis |
|
66,505,889 |
|
2,591,893 |
|
1,401,337 |
Al
Ferrara |
|
68,796,160 |
|
301,622 |
|
1,401,337 |
Mitchell
S. Klipper |
|
68,392,748 |
|
705,034 |
|
1,401,337 |
Maria
Teresa Kumar |
|
68,385,545 |
|
712,237 |
|
1,401,337 |
Rose
Peabody Lynch |
|
66,342,569 |
|
2,755,213 |
|
1,401,337 |
Peter
Migliorini |
|
63,695,803 |
|
5,401,979 |
|
1,401,337 |
Arian
Simone Reed |
|
68,801,823 |
|
295,959 |
|
1,401,337 |
Ravi
Sachdev |
|
67,696,245 |
|
1,401,537 |
|
1,401,337 |
Robert
Smith |
|
66,334,607 |
|
2,763,175 |
|
1,401,337 |
Amelia
Newton Varela |
|
67,764,153 |
|
1,333,629 |
|
1,401,337 |
Proposal
Number 2. To ratify the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm
for the fiscal year ending December 31, 2024. The proposal was approved by a vote of stockholders as follows:
Votes
For |
|
Votes
Against |
|
Abstentions |
|
Broker
Non-Votes |
70,262,654 |
|
217,932 |
|
18,533 |
|
0 |
Proposal
Number 3. To approve, on a non-binding advisory basis, the compensation of the Company’s named executive officers as disclosed
in the Proxy Statement. The proposal was approved by a vote of stockholders as follows:
Votes
For |
|
Votes
Against |
|
Abstentions |
|
Broker
Non-Votes |
64,418,486 |
|
4,265,971 |
|
413,325 |
|
1,401,337 |
Proposal
Number 4. To approve the adoption of the Certificate Amendment to incorporate new Delaware law provisions regarding officer exculpation
and to integrate prior amendments. The proposal was approved by a vote of stockholders as follows:
Votes
For |
|
Votes
Against |
|
Abstentions |
|
Broker
Non-Votes |
65,567,700 |
|
3,120,915 |
|
409,167 |
|
1,401,337 |
Proposal
Number 5. To approve the amendments to the Plan. The proposal was approved by a vote of stockholders as follows:
Votes
For |
|
Votes
Against |
|
Abstentions |
|
Broker
Non-Votes |
59,684,634 |
|
8,999,654 |
|
413,494 |
|
1,401,337 |
Item 9.01 |
Financial Statements and Exhibits. |
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated:
May 28, 2024
STEVEN MADDEN, LTD. |
|
|
|
|
By: |
/s/
Edward Rosenfeld |
|
|
Edward
Rosenfeld |
|
|
Chief
Executive Officer |
|
Exhibit 3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
STEVEN
MADDEN, LTD.
Steven
Madden, Ltd., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
|
1. |
The
name of the corporation is Steven Madden, Ltd., which was the name under which the corporation was originally incorporated. The corporation
was originally incorporated under the laws of the State of New York on July 9, 1990, and reincorporated under the same name in Delaware
on November 10, 1998. |
|
|
|
|
2. |
This
Amended and Restated Certificate of Incorporation, which restates, integrates, and further amends the certificate of incorporation
of the corporation, has been duly adopted by the corporation in accordance with Sections 242 and 245 of the General Corporation Law
of the State of Delaware and has been adopted by the requisite vote of the stockholders of the corporation. |
|
|
|
|
3. |
The
certificate of incorporation of the corporation is hereby amended and restated in its entirety to read as follows: |
FIRST:
The name of the corporation (hereinafter called the “corporation”) is Steven
Madden, Ltd.
SECOND:
The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is
850 New Burton Road, Suite 201, Dover, Delaware 19904; and the name of the registered agent of the corporation in the State of Delaware
at such address is Cogency Global Inc., in the County of Kent.
THIRD:
The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH:
The total number of shares of all classes of stock which the corporation shall have authority to issue is two hundred fifty million
(250,000,000) shares, consisting of two hundred forty-five million (245,000,000) shares of common stock, $0.0001 par value per share,
and five million (5,000,000) shares of preferred stock, $0.0001 par value per share.
The
shares of Preferred Stock may be issued from time to time in one or more series, in any manner permitted by law, as determined from time
to time by the Board of Directors, and stated in the resolution or resolutions providing for the issuance of such shares adopted by the
Board of Directors pursuant to authority hereby vested in it. Without limiting the generality of the foregoing, shares in such series
shall have such voting powers, full or limited, or no voting powers, and shall have such designations, preferences and relative, participating,
optional, or other special rights, and qualifications, limitations, or restrictions thereof, permitted by law, as shall be stated in
the resolution or resolutions providing for the issuance of such shares adopted by the Board of Directors pursuant to authority hereby
vested in it. The number of shares of any such series so set forth in such resolution or resolutions may be increased (but not above
the total number of authorized shares of Preferred Stock) or decreased (but not below the number of shares thereof then outstanding)
by further resolution or resolutions adopted by the Board of Directors pursuant to authority hereby vested in it.
No
holder of any of the shares of the stock of the corporation, whether now or hereafter authorized
and issued, shall be entitled as of right to purchase or subscribe for any unissued stock
of
any class, or any additional shares of any class to be issued by reason of any increase of the authorized capital stock of any class
of the corporation, or bonds, certificates of indebtedness, debentures, or other securities convertible into stock of any class of the
corporation, or carrying any right to purchase stock of any class of the corporation, but any such unissued stock or any such additional
authorized issue of any stock or of other securities convertible into stock, or carrying any right to purchase stock, may be issued and
disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations, or associations, and upon such terms,
as may be deemed advisable by the Board of Directors in the exercise of its discretion.
FIFTH:
The corporation is to have perpetual existence.
SIXTH:
Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application
in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed
for this corporation under § 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver
or receivers appointed for this corporation under § 279 of Title 8 of the Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner
as the said court directors. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class
of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
SEVENTH:
For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation,
and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be,
it is further provided:
1.
The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number
of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase
“whole Board” and the phrase “total number of directors” shall be deemed to have the same meaning, to wit, the
total number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot.
2.
After the original or other Bylaws of the corporation have been adopted, amended, or repealed,
as the case may be, in accordance with the provisions of § 109 of the General Corporation
Law of the State of Delaware, and, after the corporation has received any payment for any
of its stock, the power to adopt, amend, or repeal the Bylaws of the corporation may be exercised
by the Board of Directors of the corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered terms pursuant to the provisions
of subsection (d) of § 141 of the General Corporation Law of the State of Delaware shall
be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote
of the corporation unless provisions for such classification shall be set forth in this certificate
of incorporation.
3.
Whenever the corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof
to notice of, and the right to vote at, any meeting of stockholders. Whenever the corporation shall be authorized to issue more than
one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of
incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph
(2) of subsection (b) of § 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no
share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease
in the number of authorized shares of said class.
EIGHTH:
To the fullest extent permitted by the General Corporation Law of the State of Delaware, as the same presently exists or may hereafter
be amended, no director or officer shall be personally liable to the Corporation or to any stockholder for monetary damages for breach
of fiduciary duty as a director or officer, except for any matter in respect of which (a) such director shall be liable under Section
174 of the General Corporation Law of the State of Delaware or any amendment thereto or successor provision thereto, (b) such officer
shall be liable in any action by or in the right of the corporation, or (c) such director or officer shall be liable by reason that,
in addition to any and all other requirements for liability, that person (A) shall have breached their duty of loyalty to the Corporation
or its stockholders, (B) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (C) shall have
acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner
involving intentional misconduct or a knowing violation of law or (D) shall have derived an improper personal benefit.
Any
repeal or modification of this Article EIGHTH shall not adversely affect any right or protection of a director or officer with respect
to any act or omission occurring prior to such repeal or modification. If the General Corporation Law of the State of Delaware is amended
after the date of incorporation to authorize corporate action further eliminating or limiting the personal liability of directors or
officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as so amended.
NINTH:
The corporation shall, to the fullest extent permitted by the provisions of § 145 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
TENTH:
From time to time any of the provisions of this certificate of incorporation may be amended,
altered, or repealed, and other provisions authorized by the laws of the State of Delaware
at the time in force may be added or inserted in the manner and at the time prescribed by
said laws, and all rights at any time conferred upon the stockholders of the corporation
by this certificate of incorporation are granted subject to the provisions of this Article
TENTH.
|
4. |
That
the foregoing amendment and restatement was approved by the holders of the requisite number of shares of this corporation in accordance
with the General Corporation Law of the State of Delaware. |
|
|
|
|
5. |
That
this Certificate of Incorporation, which restates and integrates and further amends the provisions of this corporation’s Certificate
of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware. |
[Signature
page follows]
IN
WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation
on this 23rd day of May, 2024.
|
|
/s/
Lisa Keith |
|
By: |
Lisa
Keith, Executive Vice President – General Counsel |
Exhibit
10.1
STEVEN
MADDEN, LTD.
2019
INCENTIVE COMPENSATION PLAN
ARTICLE
I
ESTABLISHMENT
OF PLAN
1.1
Establishment of the Plan. Steven Madden, Ltd (“the Company”) established this incentive compensation plan to permit
the granting of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units,
Performance Shares, Performance Share Units, Other Stock-Based Awards and Performance-Based Cash Awards to the persons and for the purposes
described herein.
1.2
Purposes of the Plan. The purposes of the Plan are to induce certain individuals
to remain in the employ, or to continue to serve as directors of, or consultants or advisors
to, the Company and its present and future Subsidiaries, to attract new individuals to enter
into such employment or service and to encourage such individuals to secure or increase on
reasonable terms their stock ownership in the Company. The Board believes that the granting
of Awards under the Plan will promote continuity of management and increased incentive and
personal interest in the welfare of the Company by those who are or may become primarily
responsible for shaping and carrying out the long range plans of the Company and securing
its continued growth and financial success.
1.3
Duration of the Plan. No Award may be granted under the Plan after February 24, 2034, or such earlier date as the Board shall
determine. The Plan will remain in effect with respect to outstanding Awards until no Awards remain outstanding.
ARTICLE
II
DEFINITIONS
For
purposes of this Plan, the following terms shall have the following meanings:
2.1
“Acquisition Event” means a merger or consolidation in which the Company is not the surviving entity, any transaction
that results in the acquisition of all or substantially all of the Company’s outstanding Common Stock by a single person or entity
or by a group of persons and/or entities acting in concert, or the sale or transfer of all or substantially all of the Company’s
assets.
2.2
“Affiliate” means each of the following: (a) any Subsidiary; (b) any
Parent; (c) any corporation, trade or business (including, without limitation, a partnership
or limited liability company) which is directly or indirectly controlled 50% or more (whether
by ownership of stock, assets or an equivalent ownership interest or voting interest) by
the Company; (d) any corporation, trade or business (including, without limitation, a partnership
or limited liability company) which directly or indirectly controls 50% or more (whether
by ownership of stock, assets or an equivalent ownership interest or voting interest) of
the Company; and (e) any other entity in which the Company or any of its Affiliates has a
material equity interest and which is designated as an “Affiliate” by resolution
of the Committee; provided that the Common Stock subject to any Award constitutes “service
recipient stock” for purposes of Section 409A of the Code or otherwise does not subject
the Award to Section 409A of the Code.
2.3
“Appreciation Award” means any Award under this Plan of any Stock Option, Stock Appreciation Right or Other Stock-Based
Award, provided that such Other Stock-Based Award is based on the appreciation in value of a share of Common Stock in excess of an amount
equal to at least the Fair Market Value of the Common Stock on the date such Other Stock-Based Award is granted.
2.4
“Award” means any award under this Plan of any Stock Option, Stock Appreciation Right, Restricted Stock, Performance
Share, Other Stock-Based Award or Performance-Based Cash Awards. All Awards shall be granted by, confirmed by, and subject to the terms
of, a written agreement executed by the Company and the Participant.
2.5
“Board” means the Board of Directors of the Company.
2.6
“Cause” means with respect to a Participant’s Termination of Employment or Termination of Consultancy from
and after the date hereof, the following: (a) in the case where there is no employment agreement, consulting agreement, change in control
agreement or similar agreement in effect between the Company or an Affiliate and the Participant at the time of the grant of the Award
(or where there is such an agreement but it does not define “cause” (or words of like import)), termination due to: (i) a
Participant’s conviction of, or plea of guilty or nolo contendere to, a felony; (ii) perpetration by a Participant of an illegal
act, or fraud which could cause significant economic injury to the Company; (iii) continuing willful and deliberate failure by the Participant
to perform the Participant’s duties in any material respect, provided that the Participant is given notice and an opportunity to
effectuate a cure as determined by the Committee; or (iv) a Participant’s willful misconduct with regard to the Company that could
have a material adverse effect on the Company; or (b) in the case where there is an employment agreement, consulting agreement, change
in control agreement or similar agreement in effect between the Company or an Affiliate and the Participant at the time of the grant
of the Award that defines “cause” (or words of like import), “cause” as defined under such agreement; provided,
however, that with regard to any agreement under which the definition of “cause” only applies on occurrence of a change in
control, such definition of “cause” shall not apply until a change in control actually takes place and then only with regard
to a termination thereafter. With respect to a Participant’s Termination of Directorship, “cause” means an act or failure
to act that constitutes cause for removal of a director under applicable Delaware law.
2.7
“Change in Control” has the meaning set forth in Section 14.3.
2.8
“Change in Control Price” has the meaning set forth in Section 14.1.
2.9
“Code” means the Internal Revenue Code of 1986, as amended. Any reference to any section of the Code shall also
be a reference to any successor provision and any Treasury Regulation promulgated thereunder.
2.10
“Committee” means a committee or subcommittee of the Board appointed from time to time by the Board, which committee
or subcommittee shall consist of two or more non-employee directors, each of whom shall be (i) a “non-employee director”
as defined in Rule 16b-3; and (ii) an “independent director” as defined under Nasdaq Rule 5605(a)(2) or such other applicable
stock exchange rule. To the extent that no Committee exists that has the authority to administer this Plan, the functions of the Committee
shall be exercised by the Board. If for any reason the appointed Committee does not meet the requirements of Rule 16b-3, such noncompliance
shall not affect the validity of Awards, grants, interpretations or other actions of the Committee.
2.11
“Common Stock” means the Common Stock, $0.0001 par value per share, of the Company.
2.12
“Company” means Steven Madden, Ltd., a Delaware corporation, and its successors by operation of law.
2.13
“Consultant” means any natural person who provides bona fide consulting or advisory services to the Company or
its Affiliates pursuant to a written agreement, which are not in connection with the offer and sale of securities in a capital-raising
transaction.
2.14
“Disability” means with respect to a Participant’s Termination, a permanent and total disability as defined
in Section 22(e)(3) of the Code. A Disability shall only be deemed to occur at the time of the determination by the Committee of the
Disability. Notwithstanding the foregoing, for Awards that are subject to Section 409A of the Code, Disability shall mean that a Participant
is disabled under Section 409A(a)(2)(C)(i) or (ii) of the Code.
2.15
“Effective Date” means the effective date of this Plan as defined in Article XVIII.
2.16
“Eligible Employees” means each employee of the Company or an Affiliate.
2.17
“Exchange Act” means the Securities Exchange Act of 1934, as amended. Any references to any section of the Exchange
Act shall also be a reference to any successor provision.
2.18
“Fair Market Value” means, unless otherwise required by any applicable provision of the Code or any regulations
issued thereunder, as of any date and except as provided below, the closing price reported for the Common Stock on the applicable date:
(a) as reported on the principal national securities exchange in the United States on which it is then traded, or (b) if not traded on
any such national securities exchange, the last sale price quoted in the principal over-the-counter market on which the Common Stock
is quoted, as determined by the Committee. If the Common Stock is not traded, listed or otherwise reported or quoted, then Fair Market
Value means the fair market value of the Common Stock as determined by the Committee in good faith in whatever manner it considers appropriate
taking into account the requirements of Section 422 of the Code and/or Section 409A of the Code, as applicable. For purposes of the grant
of any Award, the applicable date shall be the trading day immediately prior to the date on which the Award is granted. For purposes
of the exercise of any Award, the applicable date shall be the date a notice of exercise is received by the Committee or, if not a day
on which the applicable market is open, the next day that it is open.
2.19
“Family Member” means “family member” as defined in Section A.1.(5) of the general instructions of
Form S-8, as may be amended from time to time.
2.20
“GAAP” has the meaning set forth in Section 12.2(c)(ii).
2.21
“Incentive Stock Option” means any Stock Option awarded to an Eligible Employee of the Company, its Subsidiaries
and its Parent (if any) under this Plan intended to be and designated as an “Incentive Stock Option” within the meaning of
Section 422 of the Code.
2.22
“Limited Stock Appreciation Right” means a Tandem Stock Appreciation Right or Non-Tandem Stock Appreciation Right
exercisable only upon the occurrence of a Change in Control or other event as determined by the Committee as provided in Section 7.5.
2.23
“Non-Employee Director” means a director of the Company who is not an active employee of the Company or an Affiliate.
2.24
“Non-Qualified Stock Option” means any Stock Option awarded under this Plan that is not an Incentive Stock Option.
2.25
“Non-Tandem Stock Appreciation Right” means the right to receive
cash or a number of shares of Common Stock (as determined by the Committee, in its sole discretion,
on the date of grant) equal to the difference between (i) the Fair Market Value of a share
of Common Stock on the date such right is exercised, and (ii) the aggregate exercise price
of such right, otherwise than on surrender of a Stock Option.
2.26
“Other Stock-Based Award” means an Award under Article XI of this Plan that is valued in whole or in part by reference
to, or is payable in or otherwise based on, Common Stock, including, without limitation, a restricted stock unit or other Award valued
by reference to an Affiliate.
2.27
“Parent” means any parent corporation of the Company within the meaning of Section 424(e) of the Code.
2.28
“Participant” means an Eligible Employee, Non-Employee Director or Consultant to whom an Award has been granted
pursuant to this Plan.
2.29
“Performance Goals” means the performance goals set forth on Exhibit A hereto.
2.30
“Performance-Based Cash Award” means a cash Award under Article XII of this Plan that is payable or otherwise
based on the attainment of certain pre-established performance goals during a Performance Period.
2.31
“Performance Period” means the duration of the period during which receipt of an Award is subject to the satisfaction
of performance criteria, such period as determined by the Committee in its sole discretion.
2.32
“Performance Share” means an Award made pursuant to Article X of this Plan of the right to receive Common Stock
or cash of an equivalent value at the end of a specified Performance Period.
2.33
“Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association,
joint-stock company, trust, incorporated organization, governmental or regulatory or other entity.
2.34
“Plan” means this Steven Madden, Ltd. 2019 Incentive Compensation Plan, as it may be amended from time to time.
2.35
“Prior Plan” means the Steven Madden, Ltd. 2006 Stock Incentive Plan,
as in effect immediately prior to the Effective Date.
2.36
“Reference Stock Option” has the meaning set forth in Section 7.1.
2.37
“Restricted Stock” means an Award of shares of Common Stock under this Plan that is subject to restrictions under
Article VIII.
2.38
“Restricted Stock Unit” means an Award described in Article IX.
2.39
“Restriction Period” has the meaning set forth in Subsection 8.3(a).
2.40
“Retirement” means a voluntary Termination of Employment at or after age 65 or such earlier date after age 50
as may be approved by the Committee, in its sole discretion at the time of grant or thereafter provided that the exercise of such discretion
does not make the applicable Award subject to Section 409A of the Code, except that Retirement shall not include any Termination by the
Company with or without Cause. With respect to a Participant’s Termination of Directorship, Retirement means the failure to stand
for reelection or the failure to be reelected on or after a Participant has attained age 65 or, with the consent of the Board, before
age 65 but after age 50, provided that the exercise of such discretion does not make the applicable Award subject to Section 409A of
the Code.
2.41
“Rule 16b-3” means Rule 16b-3 under Section 16(b) of the Exchange Act as then in effect or any successor provision.
2.42
“Section 409A of the Code” means the nonqualified deferred compensation rules under Section 409A of the Code and
any applicable Treasury regulations thereunder.
2.43
“Securities Act” means the Securities Act of 1933, as amended and all rules and regulations promulgated thereunder.
Any reference to any section of the Securities Act shall also be a reference to any successor provision.
2.44
“Stock Appreciation Right” means a Non-Tandem Stock Appreciation Right or a Tandem Stock Appreciation Right.
2.45
“Stock Option” or “Option” means any option to purchase shares of Common Stock granted
to Eligible Employees, Non-Employee Directors or Consultants granted pursuant to Article VI.
2.46
“Subsidiary” means any subsidiary corporation of the Company within
the meaning of Section 424(f) of the Code.
2.47
“Tandem Stock Appreciation Right” means the right to surrender to the Company all (or a portion) of a Stock
Option in exchange for cash or a number of shares of Common Stock (as determined by the Committee, in its sole discretion, on the date
of grant) equal to the difference between (a) the Fair Market Value on the date such Stock Option (or such portion thereof) is surrendered,
of the Common Stock covered by such Stock Option (or such portion thereof), and (b) the aggregate exercise price of such Stock Option
(or such portion thereof).
2.48
“Ten Percent Stockholder” means an Eligible Employee owning stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company, its Subsidiaries or its Parent.
2.49
“Termination” means a Termination of Consultancy, Termination of Directorship or Termination of Employment, as
applicable.
2.50
“Termination of Consultancy” means: (a) that the Consultant is no longer acting as a consultant to the Company
or an Affiliate; or (b) when an entity which is retaining a Participant as a Consultant ceases to be an Affiliate unless the Participant
otherwise is, or thereupon becomes, a Consultant to the Company or another Affiliate at the time the entity ceases to be an Affiliate.
In the event that a Consultant becomes an Eligible Employee or a Non-Employee Director upon the termination of his or her consultancy,
unless otherwise determined by the Committee, in its sole discretion, no Termination of Consultancy shall be deemed to occur until such
time as such Consultant is no longer a Consultant, an Eligible Employee or a Non-Employee Director. Notwithstanding the foregoing, the
Committee may, in its sole discretion, otherwise define Termination of Consultancy in the Award agreement or, if no rights of a Participant
are reduced, may otherwise define Termination of Consultancy thereafter.
2.51
“Termination of Directorship” means that the Non-Employee Director has ceased to be a director of the Company;
except that if a Non-Employee Director becomes an Eligible Employee or a Consultant upon the termination of his or her directorship,
his or her ceasing to be a director of the Company shall not be treated as a Termination of Directorship unless and until the Participant
has a Termination of Employment or Termination of Consultancy, as the case may be.
2.52
“Termination of Employment” means: (a) a termination of employment
(for reasons other than a military or personal leave of absence granted by the Company) of
a Participant from the Company and its Affiliates; or (b) when an entity which is employing
a Participant ceases to be an Affiliate, unless the Participant otherwise is, or thereupon
becomes, employed by the Company or another Affiliate at the time the entity ceases to be
an Affiliate. In the event that an Eligible Employee becomes a Consultant or a Non-Employee
Director upon the termination of his or her employment, unless otherwise determined by the
Committee, in its sole discretion, no Termination of Employment shall be deemed to occur
until such time as such Eligible Employee is no longer an Eligible Employee, a Consultant
or a Non-Employee Director. Notwithstanding the foregoing, the Committee may, in its sole
discretion, otherwise define Termination of Employment in the Award agreement or, if no rights
of a Participant are reduced, may otherwise define Termination of Employment thereafter.
2.53
“Transfer” means: (a) when used as a noun, any direct or indirect transfer, sale, assignment, pledge, hypothecation,
encumbrance or other disposition (including the issuance of equity in a Person), whether for value or no value and whether voluntary
or involuntary (including by operation of law), and (b) when used as a verb, to directly or indirectly transfer, sell, assign, pledge,
encumber, charge, hypothecate or otherwise dispose of (including the issuance of equity in a Person) whether for value or for no value
and whether voluntarily or involuntarily (including by operation of law). “Transferred” and “Transferrable” shall
have a correlative meaning.
ARTICLE
III
ADMINISTRATION
3.1
The Committee. This Plan shall be administered and interpreted by the Committee.
3.2
Grants of Awards. The Committee shall have full authority to grant, pursuant to the terms of this Plan, to Eligible Employees,
Consultants and Non-Employee Directors: (i) Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv) Restricted Stock
Units, (v) Performance Shares; (vi) Other Stock-Based Awards, and (vii) Performance-Based Cash Awards. In particular, the Committee
shall have the authority:
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(a) |
to
select the Eligible Employees, Consultants and Non-Employee Directors to whom Awards may from time to time be granted hereunder; |
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(b) |
to
determine whether and to what extent Awards, or any combination thereof, are to be granted hereunder to one or more Eligible Employees,
Consultants or Non-Employee Directors; |
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(c) |
to
determine the number of shares of Common Stock to be covered by each Award granted hereunder; |
|
(d) |
to
determine the terms and conditions, not inconsistent with the terms of this Plan, of any Award granted hereunder (including, but
not limited to, the exercise or purchase price (if any), any restriction or limitation, any vesting schedule or acceleration thereof,
or any forfeiture restrictions or waiver thereof, regarding any Award and the shares of Common Stock relating thereto, based on such
factors, if any, as the Committee shall determine, in its sole discretion); |
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(e) |
to
determine whether, to what extent and under what circumstances grants of Options and other Awards under this Plan are to operate
on a tandem basis and/or in conjunction with or apart from other awards made by the Company outside of this Plan; |
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(f) |
to
determine whether and under what circumstances a Stock Option may be settled in cash, Common Stock and/or Restricted Stock under
Section 6.3(d); |
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(g) |
to
determine whether, to what extent and under what circumstances Common Stock and other amounts payable with respect to an Award under
this Plan shall be deferred either automatically or at the election of the Participant in any case, in a manner intended to comply
with, Section 409A of the Code; |
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(h) |
to
determine whether a Stock Option is an Incentive Stock Option or Non-Qualified Stock Option; |
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(i) |
to
determine whether to require a Participant, as a condition of the granting of any Award, to not sell or otherwise dispose of shares
acquired pursuant to the exercise of an Award for a period of time as determined by the Committee, in its sole discretion, following
the date of the acquisition of such Award; and |
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(j) |
to
set the performance criteria and the Performance Period with respect to any Award for which the grant, vesting or payment of such
Award is conditioned upon the attainment of specified performance criteria and to certify the attainment of any such performance
criteria. |
3.3
Guidelines. Subject to Article XV hereof, the Committee shall, in its sole discretion, have the authority to adopt, alter
and repeal such administrative rules, guidelines and practices governing this Plan and perform all acts, including the delegation of
its responsibilities (to the extent permitted by applicable law and applicable stock exchange rules), as it shall, from time to time,
deem advisable; to construe and interpret the terms and provisions of this Plan and any Award issued under this Plan (and any agreements
relating thereto); and to otherwise supervise the administration of this Plan. The Committee may, in its sole discretion, correct
any defect, supply any omission or reconcile any inconsistency in this Plan or in any agreement relating thereto in the manner and to
the extent it shall deem necessary to effectuate the purpose and intent of this Plan. The Committee may, in its sole discretion,
adopt special guidelines and provisions for persons who are residing in or employed in, or subject to, the taxes of, any domestic or
foreign jurisdictions to comply with applicable tax and securities laws of such domestic or foreign jurisdictions. This Plan is
intended to comply with the applicable requirements of Rule 16b-3, and this Plan shall be limited, construed and interpreted in a manner
so as to comply therewith.
3.4
Decisions Final. Any decision, interpretation or other action made or taken in
good faith by or at the direction of the Company, the Board or the Committee (or any of its
members) arising out of or in connection with this Plan shall be within the absolute discretion
of all and each of them, as the case may be, and shall be final, binding and conclusive on
the Company and all employees and Participants and their respective heirs, executors, administrators,
successors and assigns.
3.5
Procedures. If the Committee is appointed, the Board shall designate one of the members of the Committee as chairman and the
Committee shall hold meetings, subject to the By-Laws of the Company, at such times and places as it shall deem advisable, including,
without limitation, by telephone conference or by written consent to the extent permitted by applicable law. A majority of the Committee
members shall constitute a quorum. All determinations of the Committee shall be made by a majority of its members. Any decision or determination
reduced to writing and signed by all the Committee members in accordance with the By-Laws of the Company shall be fully effective as
if it had been made by a vote at a meeting duly called and held. The Committee shall keep minutes of its meetings and shall make such
rules and regulations for the conduct of its business as it shall deem advisable.
3.6
Delegation of Authority and Employment of Consultants.
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(a) |
The
Committee may, in its sole discretion, designate employees of the Company and professional advisors to assist the Committee in the
administration of this Plan and (to the extent permitted by applicable law and applicable exchange rules) may grant authority to
officers to grant Awards and/or execute agreements or other documents on behalf of the Committee. |
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(b) |
The
Committee may, in its sole discretion, employ such legal counsel, consultants and agents as it may deem desirable for the administration
of this Plan and may rely upon any opinion received from any such counsel or consultant and any computation received from any such
consultant or agent. Expenses incurred by the Committee or the Board in the engagement of any such counsel, consultant or agent shall
be paid by the Company. The Committee, its members and any person designated pursuant to sub-section (a) above shall not be liable
for any action or determination made in good faith with respect to this Plan. To the maximum extent permitted by applicable law,
no officer of the Company or member or former member of the Committee or of the Board shall be liable for any action or determination
made in good faith with respect to this Plan or any Award granted under it. |
3.7
Indemnification. To the maximum extent permitted by applicable law and the Certificate
of Incorporation and By-Laws of the Company and to the extent not covered by insurance directly
insuring such person, each officer or employee of the Company or any Affiliate and member
or former member of the Committee or the Board shall be indemnified and held harmless by
the Company against any cost or expense (including reasonable fees of counsel reasonably
acceptable to the Committee) or liability (including any sum paid in settlement of a claim
with the approval of the Committee), and advanced amounts necessary to pay the foregoing
at the earliest time and to the fullest extent permitted, arising out of any act or omission
to act in connection with the administration of this Plan, except to the extent arising out
of such officer’s, employee’s, member’s or former member’s fraud.
Such indemnification shall be in addition to any rights of indemnification the officers,
employees, directors or members or former officers, directors or members may have under applicable
law or under the Certificate of Incorporation or By-Laws of the Company or any Affiliate.
Notwithstanding anything else herein, this indemnification will not apply to the actions
or determinations made by an individual with regard to Awards granted to him or her under
this Plan.
ARTICLE
IV
SHARE
LIMITATION
4.1
Shares.
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(a) |
General
Limitations. The aggregate number of shares of Common Stock that may be issued or used for reference purposes or with respect
to which Awards may be granted under this Plan shall not exceed 19,000,000 shares (subject to any increase or decrease pursuant to
Section 4.2), which may be either authorized and unissued Common Stock or Common Stock held in or acquired for the treasury of the
Company or both. Any shares of Common Stock that are subject to Awards that are not Appreciation Awards shall be counted against
this limit as 3.0 shares for every share granted. If any Appreciation Award granted under this Plan expires, terminates, is cancelled
or is forfeited for any reason, the number of shares of Common Stock underlying any such Award shall again be available for the purpose
of Awards under this Plan and added back to the aggregate maximum limit. If any Awards that are not Appreciation Awards granted under
this Plan to a Participant expire, terminate, are cancelled or are forfeited for any reason, 3.0 shares of Common Stock shall again
be available for the purposes of Awards under this Plan and added back to the aggregate maximum limit. If a Tandem Stock Appreciation
Right or a Limited Stock Appreciation Right is granted in tandem with an Option, such grant shall only apply once against the maximum
number of shares of Common Stock which may be issued under this Plan. The number of shares of Common Stock available for the purpose
of Awards under this Plan shall be reduced by (i) the total number of Stock Options or Stock Appreciation Rights exercised, regardless
of whether any of the shares of Common Stock underlying such Awards are not actually issued to the Participant as the result of a
net settlement, (ii) any shares of Common Stock used to pay any exercise price or tax withholding obligation with respect to any
Award and (iii) any shares of Common Stock repurchased by the Company on the open market with the proceeds of an Stock Option exercise
price. |
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(b) |
Individual
Participant Limitations. |
(i)
The maximum number of shares of Common Stock subject to any Award of Stock Options, Stock Appreciation Rights, shares of Restricted Stock
or Awards parts of Restricted Stock Units for which the grant of such Award or the lapse of the relevant Restriction Period is subject
to the attainment of Performance Goals which may be granted under this Plan during any fiscal year of the Company to each Eligible Employee
or Consultant shall be 1,000,000 shares per type of Award (which shall be subject to any further increase or decrease pursuant to Section
4.2), provided that the maximum number of shares of Common Stock for all types of Awards does not exceed 1,200,000 (which shall be subject
to any further increase or decrease pursuant to Section 4.2) with respect to any fiscal year of the Company. If a Tandem Stock Appreciation
Right is granted or a Limited Stock Appreciation Right is granted in tandem with a Stock Option, it shall apply against the Eligible
Employee’s or Consultant’s individual share limitations for both Stock Appreciation Rights and Stock Options.
(ii)
The maximum number of shares of Common Stock subject to (A) any Award of Stock Options (other
than Incentive Stock Options), Stock Appreciation Rights and any other share appreciation
awards which may be granted under this Plan during any fiscal year of the Company to each
Non-Employee Director shall be 120,000 shares per type of Award (which shall be subject to
any further increase or decrease pursuant to Section 4.2), provided that the maximum number
of shares of Common Stock for all such Awards does not exceed 160,000 (which shall be subject
to any further increase or decrease pursuant to Section 4.2) with respect to any fiscal year
of the Company, and (B) any Award of Restricted Stock, Restricted Stock Units and any other
Awards other than Awards described in Section 4.1(b)(ii)(A) which may be granted under this
Plan during any fiscal year of the Company to each Non-Employee Director shall be 40,000
shares per type of Award (which shall be subject to any further increase or decrease pursuant
to Section 4.2), provided that the maximum number of shares of Common Stock for all such
Awards does not exceed 60,000 (which shall be subject to any further increase or decrease
pursuant to Section 4.2) with respect to any fiscal year of the Company; provided further,
that in no event shall the aggregate grant of Awards to Non-Employee Directors exceed 5%
(when combined with the 5% limitation set forth in Sections 6.3(c), 8.3(a)(iv), 9.3(c), 10.2(f)
and 11.2(c) of this Plan) of the total number of shares of Common Stock reserved for Awards
under this Plan. If a Tandem Stock Appreciation Right is granted or a Limited Stock Appreciation
Right is granted in tandem with a Stock Option, it shall apply against the Non-Employee Director’s
individual share limitations for both Stock Appreciation Rights and Stock Options.
(iii)
There are no annual individual Eligible Employee or Consultant share limitations on Restricted Stock for which the grant of such Award
or the lapse of the relevant Restriction Period is not subject to attainment of Performance Goals in accordance with Section 8.3(a)(ii)
hereof.
(iv)
The maximum number of shares of Common Stock subject to any Award of Performance Shares which may be granted under this Plan during any
fiscal year of the Company to each Eligible Employee or Consultant shall be 1,000,000 (which shall be subject to any further increase
or decrease pursuant to Section 4.2) with respect to any fiscal year of the Company. Each Performance Share shall be referenced to one
share of Common Stock and shall be charged against the available shares under this Plan at the time the unit value measurement is converted
to a referenced number of shares of Common Stock in accordance with Section 10.1.
(v)
The maximum payment under any Performance-Based Cash Award payable with respect to any fiscal
year of the Company and for which the grant of such Award is subject to the attainment of
Performance Goals in accordance with Section 12.2(c) herein which may be granted under this
Plan with respect to any fiscal year of the Company to each Eligible Employee or Consultant
shall be $10,000,000.
(vi)
The individual Participant limitations set forth in this Section 4.1(b) shall be cumulative; that is, to the extent that shares of Common
Stock for which Awards are permitted to be granted to an Eligible Employee or a Consultant during a fiscal year are not covered by an
Award to such Eligible Employee or Consultant in a fiscal year, the number of shares of Common Stock available for Awards to such Eligible
Employee or Consultant shall automatically increase in the subsequent fiscal years during the term of the Plan until used.
4.2
Changes.
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(a) |
The
existence of this Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or the stockholders
of the Company to make or authorize (i) any adjustment, recapitalization, reorganization or other change in the Company’s capital
structure or its business, (ii) any merger or consolidation of the Company or any Affiliate, (iii) any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Common Stock, (iv) the dissolution or liquidation of the Company or
any Affiliate, (v) any sale or transfer of all or part of the assets or business of the Company or any Affiliate or (vi) any other
corporate act or proceeding. |
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(b) |
Subject
to the provisions of Section 4.2(d), if there shall occur any such change in the capital structure of the Company by reason of any
stock split, reverse stock split, stock dividend, subdivision, combination or reclassification of shares that may be issued under
the Plan, any recapitalization, any merger, any consolidation, any spin off, any reorganization or any partial or complete liquidation,
or any other corporate transaction or event having an effect similar to any of the foregoing (a “Section 4.2 Event”),
then (i) the aggregate number and/or kind of shares that thereafter may be issued under the Plan, (ii) the number and/or kind of
shares or other property (including cash) to be issued upon exercise of an outstanding Award or under other Awards granted under
the Plan, (iii) the purchase price thereof, and/or (iv) the individual Participant limitations set forth in Section 4.1(b) (other
than those based on cash limitations) shall be appropriately adjusted. In addition, subject to Section 4.2(d), if there shall occur
any change in the capital structure or the business of the Company that is not a Section 4.2 Event (an “Other Extraordinary
Event”), including by reason of any extraordinary dividend (whether cash or stock), any conversion, any adjustment, any
issuance of any class of securities convertible or exercisable into, or exercisable for, any class of stock, or any sale or transfer
of all or substantially all the Company’s assets or business, then the Committee, in its sole discretion, may adjust any Award
and make such other adjustments to the Plan. Any adjustment pursuant to this Section 4.2 shall be consistent with the applicable
Section 4.2 Event or the applicable Other Extraordinary Event, as the case may be, and in such manner as the Committee may, in its
sole discretion, deem appropriate and equitable to prevent substantial dilution or enlargement of the rights granted to, or available
for, Participants under the Plan. Any such adjustment determined by the Committee shall be final, binding and conclusive on the Company
and all Participants and their respective heirs, executors, administrators, successors and permitted assigns. Except as expressly
provided in this Section 4.2 or in the applicable Award agreement, a Participant shall have no rights by reason of any Section 4.2
Event or any Other Extraordinary Event. |
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(c) |
Fractional
shares of Common Stock resulting from any adjustment in Awards pursuant to Section 4.2(a) or (b) shall be aggregated until, and eliminated
at, the time of exercise by rounding-down for fractions less than one-half and rounding-up for fractions equal to or greater than
one-half. No cash settlements shall be made with respect to fractional shares eliminated by rounding. Notice of any adjustment shall
be given by the Committee to each Participant whose Award has been adjusted and such adjustment (whether or not such notice is given)
shall be effective and binding for all purposes of this Plan. |
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(d) |
In
the event of an Acquisition Event, the Committee may, in its sole discretion, terminate all outstanding and unexercised Stock Options
or Stock Appreciation Rights or any Other Stock Based Award that provides for a Participant-elected exercise effective as of the
date of the Acquisition Event, by delivering notice of termination to each Participant at least 20 days prior to the date of consummation
of the Acquisition Event, in which case during the period from the date on which such notice of termination is delivered to the consummation
of the Acquisition Event, each such Participant shall have the right to exercise in full all of his or her vested Stock Options or
Stock Appreciation Rights that are then outstanding (without regard to any limitations on exercisability otherwise contained in the
Award agreements), but any such exercise shall be contingent on the occurrence of the Acquisition Event, and, provided that, if the
Acquisition Event does not take place within a specified period after giving such notice for any reason whatsoever, the notice and
exercise pursuant thereto shall be null and void. |
If
an Acquisition Event occurs but the Committee does not terminate the outstanding Awards pursuant to this Section 4.2(d), the provisions
of Section 4.2(b) and Article XIV shall apply.
4.3
Minimum Purchase Price. Notwithstanding any provision of this Plan to the contrary, if authorized but previously unissued
shares of Common Stock are issued under this Plan, such shares shall not be issued for a consideration that is less than as permitted
under applicable law.
ARTICLE
V
ELIGIBILITY
- GENERAL REQUIREMENTS FOR AWARDS
5.1
General Eligibility. All Eligible Employees, Consultants, Non-Employee Directors and prospective employees and consultants
are eligible to be granted Awards, subject to the terms and conditions of this Plan. Eligibility for the grant of Awards and actual participation
in this Plan shall be determined by the Committee in its sole discretion.
5.2
Incentive Stock Options. Notwithstanding anything herein to the contrary, only Eligible Employees of the Company, its Subsidiaries
and its Parent (if any) are eligible to be granted Incentive Stock Options under this Plan. Eligibility for the grant of an Incentive
Stock Option and actual participation in this Plan shall be determined by the Committee in its sole discretion.
5.3
General Requirement. The vesting and exercise of Awards granted to a prospective employee or consultant are conditioned upon
such individual actually becoming an Eligible Employee or Consultant.
5.4
Issuance of Shares. Shares shall not be issued pursuant to the exercise of an
Award unless the exercise of such Award and the issuance and delivery of such shares shall
comply with all applicable laws, and shall be further subject to the approval of the Company
with respect to such compliance. As a condition of the exercise of an Award, the Company
may require the person exercising such Award to represent and warrant at the time of such
exercise that the shares are being purchased only for investment and without any present
intention to sell or distribute such shares if, as determined by the Company, such a representation
is required by any applicable law.
ARTICLE
VI
STOCK
OPTIONS
6.1
Options. Stock Options may be granted alone or in addition to other Awards granted under this Plan. Each Stock Option granted
under this Plan shall be of one of two types: (a) an Incentive Stock Option or (b) a Non-Qualified Stock Option.
6.2
Grants. The Committee shall, in its sole discretion, have the authority to grant to any Eligible Employee (subject to Section
5.2) Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock Options, and shall designate the type or types of option
in the Award. The Committee shall, in its sole discretion, have the authority to grant Non-Qualified Stock Options to any Consultant
or Non-Employee Director. To the extent that any Stock Option does not qualify as an Incentive Stock Option (whether because of its provisions
or the time or manner of its exercise or otherwise), such Stock Option or the portion thereof which does not qualify shall constitute
a separate Non-Qualified Stock Option. If the Stock Option does not specify whether it is an Incentive Stock Option in whole or part,
the Stock Option shall be a Non-Qualified Stock Option.
6.3
Terms of Options. Options granted under this Plan shall be subject to the following terms and conditions and shall be in such
form and contain such additional terms and conditions, not inconsistent with the terms of this Plan, as the Committee, in its sole discretion,
shall deem desirable:
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(a) |
Exercise
Price. The exercise price per share of Common Stock subject to a Stock Option shall be determined by the Committee at the time
of grant, provided that the per share exercise price of a Stock Option shall not be less than 100% (or, in the case of an Incentive
Stock Option granted to a Ten Percent Stockholder, 110%) of the Fair Market Value of the Common Stock at the time of grant. |
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(b) |
Stock
Option Term. The term of each Stock Option shall be fixed by the Committee, provided that no Stock Option shall be exercisable
more than seven (7) years after the date the Option is granted; and provided further that the term of an Incentive Stock Option granted
to a Ten Percent Stockholder shall not exceed five (5) years. |
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(c) |
Exercisability.
(i) Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be determined
by the Committee at grant. |
(ii)
Notwithstanding any other provision of this Plan to the contrary, the vesting period with respect to any Option Award shall be no
less than (A) one year, if the vesting is based (in whole or in part) on the attainment of one or more Performance Goals, and (B) three
years, if the vesting is based solely on the continued performance of services by the Participant (with vesting as to no more than one-third
of the shares of Common Stock subject thereto on each of the first three anniversaries of the date of grant).
(iii)
Subject to the limitations set forth in Section 4.1(b), the Committee shall be authorized (at the time of grant or thereafter) to
provide for earlier vesting in the event of a Participant’s Retirement, death or Disability.
Option
Awards may be granted without the foregoing limitations with respect to up to 5% (when combined with the 5% limitation set forth in Sections
4.1(b)(ii), 8.3(a)(iv), 9.3(c), 10.2(f) and 11.2(c) of this Plan) of the total number of shares of Common Stock reserved for Awards under
this Plan.
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(d) |
Method
of Exercise. Subject to whatever installment exercise and waiting period provisions apply under subsection (c) above, to the
extent vested, Stock Options may be exercised in whole or in part at any time during the Option term, by giving written notice of
exercise to the Company specifying the number of shares of Common Stock to be purchased. Such notice shall be in a form acceptable
to the Company and shall be accompanied by payment in full of the purchase price as follows: (i) in cash or by check, bank draft
or money order payable to the order of the Company; (ii) solely to the extent permitted by applicable law, if the Common Stock is
traded on The Nasdaq Stock Market or another national securities exchange or quoted in the over-the-counter market, and the Committee
authorizes, through a procedure whereby the Participant delivers irrevocable instructions to a broker reasonably acceptable to the
Committee to deliver promptly to the Company an amount equal to the purchase price; (iii) by cashless exercise; or (iv) on such other
terms and conditions as may be acceptable to the Committee (including, without limitation, payment in full or in part in the form
of delivery of Common Stock owned by the Participant based on the Fair Market Value of the Common Stock on the payment date as determined
by the Committee, in its sole discretion). No shares of Common Stock shall be issued until payment therefor, as provided herein,
has been made or provided for. |
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(e) |
Non-Transferability
of Options. No Stock Option shall be Transferable by the Participant other than by will or by the laws of descent and distribution,
and all Stock Options shall be exercisable, during the Participant’s lifetime, only by the Participant. Notwithstanding the
foregoing, the Committee may determine, in its sole discretion, at the time of grant or thereafter that a Non-Qualified Stock Option
that is otherwise not Transferable pursuant to this Section is Transferable to a Family Member in whole or in part and in such circumstances,
and under such conditions, as determined by the Committee, in its sole discretion. A Non-Qualified Stock Option that is Transferred
to a Family Member pursuant to the preceding sentence (i) may not be subsequently Transferred otherwise than by will or by the laws
of descent and distribution and (ii) remains subject to the terms of this Plan and the applicable Award agreement. Any shares of
Common Stock acquired upon the exercise of a Non-Qualified Stock Option by a permissible transferee of a Non-Qualified Stock Option
or a permissible transferee pursuant to a Transfer after the exercise of the Non-Qualified Stock Option shall be subject to the terms
of this Plan and the applicable Award agreement. |
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(f) |
Incentive
Stock Option Limitations. To the extent that the aggregate Fair Market Value (determined as of the time of grant) of the Common
Stock with respect to which Incentive Stock Options are exercisable for the first time by an Eligible Employee during any calendar
year under this Plan and/or any other stock option plan of the Company, any Subsidiary or any Parent exceeds $100,000, such Options
shall be treated as Non-Qualified Stock Options. Should any provision of this Plan not be necessary in order for the Stock Options
to qualify as Incentive Stock Options, or should any additional provisions be required, the Committee may, in its sole discretion,
amend this Plan accordingly, without the necessity of obtaining the approval of the stockholders of the Company. |
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(g) |
Form,
Modification, Extension and Renewal of Stock Options. Subject to the terms and conditions and within the limitations of this
Plan, Stock Options shall be evidenced by such form of agreement or grant as is approved by the Committee, and the Committee may,
in its sole discretion (i) modify or extend outstanding Stock Options granted under this Plan (provided that the rights of a Participant
are not reduced without his or her consent and provided further that such action does not subject the Stock Options to tax under
Section 409A of the Code), and (ii) accept the surrender of outstanding Stock Options (up to the extent not theretofore exercised)
and authorize the granting of new Stock Options in substitution therefor (to the extent not theretofore exercised). Notwithstanding
the foregoing, an outstanding Option may not be modified to reduce the exercise price thereof nor may a new Option at a lower price
be substituted for a surrendered Option (other than adjustments or substitutions in accordance with Section 4.2), unless such action
is approved by the stockholders of the Company. |
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(h) |
Early
Exercise. The Committee may provide that a Stock Option include a provision whereby the Participant may elect at any time before
the Participant’s Termination to exercise the Stock Option as to any part or all of the shares of Common Stock subject to the
Stock Option prior to the full vesting of the Stock Option, and such shares shall be subject to the provisions of Article VIII and
treated as Restricted Stock. Any unvested shares of Common Stock so purchased may be subject to a repurchase option in favor of the
Company or to any other restriction the Committee determines to be appropriate. |
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(i) |
Other
Terms and Conditions. Stock Options may contain such other provisions, which shall not be inconsistent with any of the terms
of this Plan, as the Committee shall, in its sole discretion, deem appropriate. |
ARTICLE
VII
STOCK
APPRECIATION RIGHTS
7.1
Tandem Stock Appreciation Rights. Stock Appreciation Rights may be granted in conjunction with all or part of any Stock Option
(a “Reference Stock Option”) granted under this Plan (“Tandem Stock Appreciation Rights”). In the case of a Non-Qualified
Stock Option, such rights may be granted either at or after the time of the grant of such Reference Stock Option. In the case of an Incentive
Stock Option, such rights may be granted only at the time of the grant of such Reference Stock Option.
7.2
Terms and Conditions of Tandem Stock Appreciation Rights. Tandem Stock Appreciation Rights granted hereunder shall be subject
to such terms and conditions, not inconsistent with the provisions of this Plan, as shall be determined from time to time by the Committee
in its sole discretion, and the following:
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(a) |
Base
Price. The exercise price per share of Common Stock subject to a Tandem Stock Appreciation Right shall be determined by the Committee
at the time of grant, provided that the per share base price of a Tandem Stock Appreciation Right shall not be less than 100% of
the Fair Market Value of the Common Stock at the time of grant. |
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(b) |
Term.
A Tandem Stock Appreciation Right or applicable portion thereof granted with respect to a Reference Stock Option shall terminate
and no longer be exercisable upon the termination or exercise of the Reference Stock Option, except that, unless otherwise determined
by the Committee, in its sole discretion, at the time of grant, a Tandem Stock Appreciation Right granted with respect to less than
the full number of shares covered by the Reference Stock Option shall not be reduced until and then only to the extent the exercise
or termination of the Reference Stock Option causes the number of shares covered by the Tandem Stock Appreciation Right to equal
or exceed the number of shares remaining available and unexercised under the Reference Stock Option. |
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(c) |
Exercisability.
Tandem Stock Appreciation Rights shall be exercisable only at such time or times and to the extent that the Reference Stock Options
to which they relate shall be exercisable in accordance with the provisions of Article VI, and shall be subject to the provisions
of Section 6.3(c). |
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(d) |
Method
of Exercise. A Tandem Stock Appreciation Right may be exercised by the Participant by surrendering the applicable portion of
the Reference Stock Option. Upon such exercise and surrender, the Participant shall be entitled to receive an amount determined in
the manner prescribed in this Section 7.2. Stock Options which have been so surrendered, in whole or in part, shall no longer be
exercisable to the extent the related Tandem Stock Appreciation Rights have been exercised. |
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(e) |
Payment.
Upon the exercise of a Tandem Stock Appreciation Right, a Participant shall be entitled to receive up to, but no more than, an amount
in cash or a number of shares of Common Stock (as determined by the Committee, in its sole discretion, on the date of grant) equal
in value to the excess of the Fair Market Value of one share of Common Stock over the Option exercise price per share specified in
the Reference Stock Option agreement, multiplied by the number of shares in respect of which the Tandem Stock Appreciation Right
shall have been exercised. |
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(f) |
Deemed
Exercise of Reference Stock Option. Upon the exercise of a Tandem Stock Appreciation Right, the Reference Stock Option or part
thereof to which such Stock Appreciation Right is related shall be deemed to have been exercised for the purpose of the limitation
set forth in Article IV of the Plan on the number of shares of Common Stock to be issued under the Plan. |
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(g) |
Non-Transferability.
Tandem Stock Appreciation Rights shall be Transferable only when and to the extent that the underlying Stock Option would be Transferable
under Section 6.3(e) of the Plan. |
7.3
Non-Tandem Stock Appreciation Rights. Non-Tandem Stock Appreciation Rights may also be granted without reference to any Stock
Options granted under this Plan.
7.4
Terms and Conditions of Non-Tandem Stock Appreciation Rights. Non-Tandem Stock Appreciation Rights granted hereunder shall
be subject to such terms and conditions, not
inconsistent
with the provisions of this Plan, as shall be determined from time to time by the Committee in its sole discretion, and the following:
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(a) |
Exercise
Price. The base price per share of Common Stock subject to a Non-Tandem Stock Appreciation Right shall be determined by the Committee
at the time of grant, provided that the per share base price of a Non-Tandem Stock Appreciation Right shall not be less than 100%
of the Fair Market Value of the Common Stock at the time of grant. |
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(b) |
Term.
The term of each Non-Tandem Stock Appreciation Right shall be fixed by the Committee, but shall not be greater than 7 years after
the date the right is granted. |
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(c) |
Exercisability.
Non-Tandem Stock Appreciation Rights shall be exercisable at such time or times and subject to such terms and conditions as shall
be determined by the Committee at grant. Notwithstanding any other provision of this Plan to the contrary, the vesting period with
respect to any such right shall be no less than (A) one year, if the vesting is based (in whole or in part) on the attainment of
one or more Performance Goals, and (B) three years, if the vesting is based solely on the continued performance of services by the
Participant (with vesting as to no more than one-third of the shares of Common Stock subject thereto on each of the first three anniversaries
of the date of grant). |
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(d) |
Method
of Exercise. Subject to whatever installment exercise and waiting period provisions apply under subsection (c) above, Non-Tandem
Stock Appreciation Rights may be exercised in whole or in part at any time in accordance with the applicable Award agreement, by
giving written notice of exercise to the Company specifying the number of Non-Tandem Stock Appreciation Rights to be exercised. |
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(e) |
Payment.
Upon the exercise of a Non-Tandem Stock Appreciation Right, a Participant shall be entitled to receive, for each right exercised,
up to, but no more than, an amount in cash or a number of shares of Common Stock (as determined by the Committee, in its sole discretion,
on the date of grant) equal in value to the excess of the Fair Market Value of one share of Common Stock on the date the right is
exercised over the Fair Market Value of one share of Common Stock on the date the right was awarded to the Participant. |
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(f) |
Non-Transferability.
No Non-Tandem Stock Appreciation Rights shall be Transferable by the Participant otherwise than by will or by the laws of descent
and distribution, and all such rights shall be exercisable, during the Participant’s lifetime, only by the Participant. |
7.5
Limited Stock Appreciation Rights. The Committee may, in its sole discretion, grant Tandem and Non-Tandem Stock Appreciation
Rights either as a general Stock Appreciation Right or as a Limited Stock Appreciation Right. Limited Stock Appreciation Rights may be
exercised only upon the occurrence of a Change in Control or such other event as the Committee may, in its sole discretion, designate
at the time of grant or thereafter. Upon the exercise of Limited Stock Appreciation Rights, except as otherwise provided in an Award
agreement, the Participant shall receive in cash or Common Stock, as determined by the Committee, an amount equal to the amount (a) set
forth in Section 7.2(e) with respect to Tandem Stock Appreciation Rights, or (b) set forth in Section 7.4(e) with respect to Non-Tandem
Stock Appreciation Rights, as applicable.
ARTICLE
VIII
RESTRICTED
STOCK
8.1
Awards of Restricted Stock. Shares of Restricted Stock may be issued either alone or in addition to other Awards granted under
the Plan. The Committee shall, in its sole discretion, determine the Eligible Employees, Consultants and Non-Employee Directors, to whom,
and the time or times at which, grants of Restricted Stock shall be made, the number of shares to be awarded, the price (if any) to be
paid by the Participant (subject to Section 8.2), the time or times within which such Awards may be subject to forfeiture, the vesting
schedule and rights to acceleration thereof, and all other terms and conditions of the Awards. The Committee may condition the grant
or vesting of Restricted Stock upon the attainment of specified performance targets (including, the Performance Goals specified in Exhibit
A attached hereto) or such other factors as the Committee may determine, in its sole discretion.
8.2
Awards and Certificates. Eligible Employees, Consultants and Non-Employee Directors selected to receive Restricted Stock shall
not have any rights with respect to such Award, unless and until such Participant has delivered a fully executed copy of the agreement
evidencing the Award to the Company and has otherwise complied with the applicable terms and conditions of such Award. Further, such
Award shall be subject to the following conditions:
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(a) |
Purchase
Price. The purchase price of Restricted Stock, if any, shall be fixed by the Committee. Subject to Section 4.3, the purchase
price for shares of Restricted Stock may be zero to the extent permitted by applicable law, and, to the extent not so permitted,
such purchase price may not be less than par value. |
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(b) |
Acceptance.
Awards of Restricted Stock must be accepted within a period of 60 days (or such other period as the Committee may specify) after
the grant date, by execution of a Restricted Stock agreement and by payment of the purchase price (if any) the Committee has designated
thereunder. |
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(c) |
Legend.
Each Participant receiving Restricted Stock shall be issued a stock certificate in respect of such shares of Restricted Stock, unless
the Committee elects to use another system, such as book entries by the transfer agent, as evidencing ownership of shares of Restricted
Stock. Such certificate shall be registered in the name of such Participant, and shall, in addition to such legends required by applicable
securities laws, bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Award, substantially
in the following form: |
“The
anticipation, alienation, attachment, sale, transfer, assignment, pledge, encumbrance or charge of the shares of stock represented hereby
are subject to the terms and conditions (including forfeiture) of the Steven Madden, Ltd. 2019 Stock Incentive Plan and an agreement
entered into between the registered owner and the Company dated __________. Copies of such Plan and agreement are on file at the principal
office of the Company.”
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(d) |
Custody.
If stock certificates are issued in respect of shares of Restricted Stock, the Committee may require that any stock certificates
evidencing such shares be held in custody by the Company until the restrictions thereon shall have lapsed, and that, as a condition
of any grant of Restricted Stock, the Participant shall have delivered a duly signed stock power, endorsed in blank, relating to
the Common Stock covered by such Award. |
8.3
Restrictions and Conditions. The shares of Restricted Stock awarded pursuant to this Plan shall be subject to the following
restrictions and conditions:
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(a) |
Restriction
Period. (b) General. The Participant shall not be permitted to Transfer shares of Restricted Stock awarded under this
Plan during the period or periods set by the Committee (the “Restriction Period”) commencing on the date of such Award,
as set forth in a Restricted Stock Award agreement, and such agreement shall set forth a vesting schedule and any events which would
accelerate vesting of the shares of Restricted Stock. Within those limits, the Committee may condition the grant or provide for the
lapse of such restrictions in installments in whole or in part, or may accelerate the vesting of Restricted Stock. |
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(i) Objective Performance Goals, Formulae or Standards. If
the grant of shares of Restricted Stock or the lapse of restrictions is based on the attainment of Performance Goals, the Committee
shall establish the Performance Goals and the applicable vesting percentage of the Restricted Stock Award applicable to each
Participant or class of Participants in writing prior to the beginning of the applicable Performance Period or at such later date as
otherwise determined by the Committee. Such Performance Goals may incorporate provisions for disregarding (or adjusting for) changes
in accounting methods, corporate transactions (including, without limitation, dispositions and acquisitions) and other similar type
events or circumstances. The applicable Performance Goals shall be based on one or more of the performance criteria set forth in
Exhibit A hereto or such other criteria as the Committee may determine from time to time. |
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(ii) Limitations.
Notwithstanding any other provision of this Plan to the contrary, the Restriction Period with respect to any Restricted Stock Award
shall be no less than (A) one year, if the lapsing of restrictions is based (in whole or in part) on the attainment of one or more
Performance Goals, and (B) three years, if the lapsing of restrictions is based solely on the continued performance of services by
the Participant (with restrictions as to no more than one-third of the shares of Common Stock subject thereto lapsing on each
of the first three anniversaries of the date of grant).
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(iii)
Acceleration. Subject to the terms of this Plan, the Committee shall be authorized (at the time of grant or thereafter) to provide
for the earlier lapsing of restrictions in the event of a Participant’s Retirement, death or Disability.
Subject
to the limitations set forth in Section 4.1(b), Restricted Stock Awards may be granted without the foregoing limitations with respect
to up to 5% (when combined with the 5% limitation set forth in Sections 4.1(b)(ii), 6.3(c), 9.3(c), 10.2(f) and 11.2(c) of this Plan)
of the total number of shares of Common Stock reserved for Awards under this Plan.
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(c) |
Rights
as a Stockholder. Except as provided in this subsection (b) and subsection (a) above and as otherwise determined by the Committee,
the Participant shall have, with respect to the shares of Restricted Stock, all of the rights of a holder of shares of Common Stock
of the Company including, without limitation, the right to receive any dividends, the right to vote such shares and, subject to and
conditioned upon the full vesting of shares of Restricted Stock, the right to tender such shares. The Committee may, in its sole
discretion, determine at the time of grant that dividends shall be accumulated and payment deferred until, and conditioned upon,
the expiration of the applicable Restriction Period. |
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(d) |
Lapse
of Restrictions. If and when the Restriction Period expires without a prior forfeiture of the Restricted Stock, the certificates
for such shares shall be delivered to the Participant. All legends shall be removed from said certificates at the time of delivery
to the Participant, except as otherwise required by applicable law or other limitations imposed by the Committee. |
ARTICLE
IX
RESTRICTED
STOCK UNITS
9.1
Award of Restricted Stock Units. Restricted Stock Units may be granted either alone or in addition to other Awards granted
under the Plan. The Committee shall, in its sole discretion, determine the Eligible Employees, Consultants and Non-Employee Directors,
to whom, and the time or times at which, Restricted Stock Units shall be awarded, the number of Restricted Stock Units to be awarded,
the time or times within which such Awards may be subject to forfeiture, the vesting schedule and rights to acceleration thereof, and
all other terms and conditions of the Awards. The Committee may condition the grant or vesting of Restricted Stock Units upon the attainment
of specified performance targets (including, the Performance Goals specified in Exhibit A attached hereto) or such other factors as the
Committee may determine, in its sole discretion.
9.2
Nature of Award. An award of a Restricted Stock Unit conveys a right to payment of Common Stock or the cash value of Common
Stock after the date on which the Award is granted and subject to such conditions, including vesting and performance conditions, as the
Committee may determine.
9.3
Vesting and Performance Conditions.
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(a) |
General.
Restricted Stock Units shall be subject to such limits and conditions as are set forth in an Award Agreement, which shall set forth
a vesting schedule and any events which would accelerate vesting of the Restricted Stock Units. Notwithstanding any other provision
of this Plan to the contrary, the vesting period with respect to any Restricted Stock Unit shall be no less than (A) one year, if
the vesting is based (in whole or in part) on the attainment of one or more Performance Goals, and (B) three years, if the vesting
is based solely on the continued performance of services by the Participant (with vesting as to no more than one-third of the shares
of Common Stock subject thereto on each of the first three anniversaries of the date of grant. |
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(b) |
Objective
Performance Goals, Formulae or Standards. If the grant or vesting of Restricted Stock Units is based on the attainment of Performance
Goals, the Committee shall establish the Performance Goals and the applicable vesting percentage of the Restricted Stock Unit Award
applicable to each Participant or class of Participants in writing prior to the beginning of the applicable Performance Period or
at such later date as otherwise determined by the Committee. Such Performance Goals may incorporate provisions for disregarding (or
adjusting for) changes in accounting methods, corporate transactions (including, without limitation, dispositions and acquisitions)
and other similar type events or circumstances. The applicable Performance Goals shall be based on one or more of the performance
criteria set forth in Exhibit A hereto or such other criteria as the Committee may determine from time to time. |
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(c) |
Acceleration.
Subject to the terms of this Plan, the Committee shall be authorized (at the time of grant or thereafter) to provide for the earlier
lapsing of restrictions in the event of a Participant’s Retirement, death or Disability. |
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Subject
to the limitations set forth in Section 4.1(b), Restricted Stock Unit Awards may be granted without the foregoing limitations with respect
to up to 5% (when combined with the 5% limitation set forth in Sections 4.1(b)(ii), 6.3(c), 8.3(a)(iv), 10.2(f) and 11.2(c) of this Plan)
of the total number of shares of Common Stock reserved for Awards under this Plan. |
9.4
Form and Timing of Payment. Except as otherwise provided under the terms of the
Plan or a Participant’s Award agreement, payment of Restricted Stock Units shall be
made at a specified settlement date that shall not be earlier than the last day of the vesting
or restriction period. The Committee, in its sole discretion, may pay Restricted Stock Units
by delivery of a number of shares of Common Stock or by payment in cash in an amount equal
to the Fair Market Value of such Common Stock, or a combination thereof. The Committee may
provide that settlement of Restricted Stock Units shall be deferred further, on a mandatory
basis or at the election of the Participant.
9.5
Rights as a Shareholder. A Participant shall not have the rights of a shareholder until and unless the Award of a Restricted
Stock Unit has been settled by the issuance of shares of Common Stock to the Participant. At the discretion of the Committee, Restricted
Stock Units granted pursuant to the Plan may provide Participants with the right to receive dividend equivalents, which may be paid currently
or credited to an account for the Participant, and which may be settled in Common Stock or cash, as determined by the Committee in its
sole discretion, subject in each case to such terms and conditions as the Committee may establish, which may differ from the terms and
conditions applicable to shares of Common Stock payable under the Restricted Stock Unit. The Committee shall not be under any obligation
to pay dividend equivalents.
ARTICLE
X
PERFORMANCE
SHARES
10.1
Award of Performance Shares. Performance Shares may be awarded either alone or in addition to other Awards granted under this
Plan. The Committee shall, in its sole discretion, determine the Eligible Employees, Consultants and Non-Employee Directors, to whom,
and the time or times at which, Performance Shares shall be awarded, the number of Performance Shares to be awarded to any person, the
Performance Period during which, and the conditions under which, receipt of the Shares will be deferred, and the other terms and conditions
of the Award in addition to those set forth in Section 10.2.
Except
as otherwise provided herein, the Committee shall condition the right to payment of any Performance Share upon the attainment of specified
objective performance goals (including, the Performance Goals specified in Exhibit A attached hereto) established pursuant to Section
10.2(c) below and such other factors as the Committee may determine, in its sole discretion.
10.2
Terms and Conditions. Performance Shares awarded pursuant to this Article X shall be subject to the following terms and conditions:
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(a) |
Earning
of Performance Share Award. At the expiration of the applicable Performance Period, the Committee shall determine the extent
to which the Performance Goals established pursuant to Section 10.2(c) are achieved and the percentage of each Performance Share
Award that has been earned. |
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(b) |
Non-Transferability.
Subject to the applicable provisions of the Award agreement and this Plan, Performance Shares may not be Transferred during the Performance
Period. |
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(c) |
Objective
Performance Goals, Formulae or Standards. The Committee shall establish the objective Performance Goals for the earning of Performance
Shares based on a Performance Period applicable to each Participant or class of Participants in writing prior to the beginning of
the applicable Performance Period or at such later date as the Committee shall determine. Such Performance Goals may incorporate
provisions for disregarding (or adjusting for) changes in accounting methods, corporate transactions (including, without limitation,
dispositions and acquisitions) and other similar type events or circumstances. The applicable Performance Goals shall be based on
one or more of the performance criteria set forth in Exhibit A hereto or such other performance criteria as the Committee shall establish. |
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(d) |
Dividends.
Unless otherwise determined by the Committee at the time of grant, amounts equal to any dividends declared during the Performance
Period with respect to the number of shares of Common Stock covered by a Performance Share will not be paid to the Participant. |
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(e) |
Payment.
Following the Committee’s determination in accordance with subsection (a) above, shares of Common Stock or, as determined by
the Committee in its sole discretion, the cash equivalent of such shares shall be delivered to the Eligible Employee, Consultant
or Non-Employee Director, or his legal representative, in an amount equal to such individual’s earned Performance Shares. Notwithstanding
the foregoing, the Committee may, in its sole discretion, award an amount less than the earned Performance Shares and/or subject
the payment of all or part of any Performance Shares to additional vesting, forfeiture and deferral conditions as it deems appropriate. |
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(f) |
Vesting.
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(i)
General. The Award agreement shall set forth a vesting schedule and any events which
would accelerate vesting of the Performance Share Award. The vesting schedule with respect
to any Performance Share Award shall be no less than one year and shall be based in whole
or in part on the attainment of one or more Performance Goals.
(ii)
Acceleration. Subject to the terms of this Plan, the Committee shall be authorized (at the time of grant or thereafter) to provide
for the earlier lapsing of restrictions in the event of a Participant’s Retirement, death or Disability.
Subject
to the limitations set forth in Section 4.1(b), Performance Share Awards may be granted without the foregoing limitations with respect
to up to 5% (when combined with the 5% limitation set forth in Sections 4.1(b)(ii), 6.3(c), 8.3(a)(iv), 9.3(c), and 11.2(c) of this Plan)
of the total number of shares of Common Stock reserved for Awards under this Plan.
ARTICLE
XI
OTHER
STOCK-BASED AWARDS
11.1
Other Awards. The Committee, in its sole discretion, is authorized to grant to Eligible Employees, Consultants and Non-Employee
Directors Other Stock-Based Awards that are payable in, valued in whole or in part by reference to, or otherwise based on or related
to shares of Common Stock, including, but not limited to, shares of Common Stock awarded purely as a bonus and not subject to any restrictions
or conditions, shares of Common Stock in payment of the amounts due under an incentive or performance plan sponsored or maintained by
the Company or an Affiliate, performance units, dividend equivalent units, stock equivalent units, restricted stock units and deferred
stock units. To the extent permitted by law, the Committee may, in its sole discretion, permit Eligible Employees and/or Non-Employee
Directors to defer all or a portion of their cash compensation in the form of Other Stock-Based Awards granted under this Plan, subject
to the terms and conditions of any deferred compensation arrangement established by the Company, which shall be intended to comply with
Section 409A of the Code. Other Stock-Based Awards may be granted either alone or in addition to or in tandem with other Awards
granted under the Plan.
Subject
to the provisions of this Plan, the Committee shall, in its sole discretion, have authority to determine the Eligible Employees, Consultants
and Non-Employee Directors, to whom, and the time or times at which, such Awards shall be made, the number of shares of Common Stock
to be awarded pursuant to such Awards, and all other conditions of the Awards. The Committee may also provide for the grant of
Common Stock under such Awards upon the completion of a specified Performance Period.
The
Committee may condition the grant or vesting of Other Stock-Based Awards upon the attainment of specified Performance Goals set forth
on Exhibit A as the Committee may determine, in its sole discretion.
11.2
Terms and Conditions. Other Stock-Based Awards made pursuant to this Article XII shall be subject to the following terms and
conditions:
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(a) |
Non-Transferability.
Subject to the applicable provisions of the Award agreement and this Plan, shares of Common Stock subject to Awards made under this
Article XI may not be Transferred prior to the date on which the shares are issued, or, if later, the date on which any applicable
restriction, performance or deferral period lapses. |
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(b) |
Dividends.
Unless otherwise determined by the Committee at the time of Award, subject to the provisions of the Award agreement and this Plan,
the recipient of an Award under this Article XI shall not be entitled to receive, currently or on a deferred basis, dividends or
dividend equivalents with respect to the number of shares of Common Stock covered by the Award. |
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(c) |
Vesting.
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(i)
General. The vesting schedule with respect to any Award shall be no less than (A)
one year, if the vesting period is based (in whole or in part) on the attainment of one or
more Performance Goals, and (B) three years, if the vesting period is based solely on the
continued performance of services by the Participant (with restrictions as to no more than
one-third of the shares of Common Stock subject thereto lapsing on each of the first three
anniversaries of the date of grant).
(ii)
Acceleration. Subject to the terms of this Plan, the Committee shall be authorized (at the time of grant or thereafter) to provide
for the earlier lapsing of restrictions in the event of a Change in Control or a Participant’s Retirement, death or Disability.
Subject
to the limitations set forth in Section 4.1(b), Other Stock-Based Awards may be granted without the foregoing limitations with respect
to up to 5% (when combined with the 5% limitation set forth in Sections 4.1(b)(ii), 6.3(c), 8.3(a)(iv), 9.3(c), and 10.2(f) of this Plan)
of the total number of shares of Common Stock reserved for Awards under this Plan.
|
(d) |
Price.
Common Stock issued on a bonus basis under this Article XI may be issued for no cash consideration; Common Stock purchased pursuant
to a purchase right awarded under this Article XI shall be priced, as determined by the Committee in its sole discretion. |
|
|
|
|
(e) |
Payment.
The form of payment for the Other Stock-Based Award shall be specified in the Award agreement. |
ARTICLE
XII
PERFORMANCE-BASED
CASH AWARDS
12.1
Performance-Based Cash Awards. Performance-Based Cash Awards may be granted either alone or in addition to or in tandem with
Stock Options, Stock Appreciation Rights, or Restricted Stock. Subject to the provisions of this Plan, the Committee shall, in its sole
discretion, have authority to determine the Eligible Employees, Consultants and Non-Employee Directors to whom, and the time or times
at which, such Awards shall be made, the dollar amount to be awarded pursuant to such Awards, and all other conditions of the Awards.
The Committee may also provide for the payment of dollar amount under such Awards upon the completion of a specified Performance Period.
For
each Participant, the Committee may specify a targeted performance award. The individual target award may be expressed, at the Committee’s
discretion, as a fixed dollar amount, a percentage of base pay or total pay (excluding payments made under the Plan), or an amount determined
pursuant to an objective formula or standard. Establishment of an individual target award for a Participant for a calendar year shall
not imply or require that the same level individual target award (if any such award is established by the Committee for the relevant
Participant) be set for any subsequent calendar year. At the time the Performance Goals are established, the Committee shall prescribe
a formula to determine the percentages (which may be greater than 100%) of the individual target award which may be payable based upon
the degree of attainment of the Performance Goals during the calendar year. Notwithstanding anything else herein, the Committee may,
in its sole discretion, elect to pay a Participant an amount that is less than the Participant’s individual target award (or attained
percentage thereof) regardless of the degree of attainment of the Performance Goals; provided that no such discretion to reduce an Award
earned based on achievement of the applicable Performance Goals shall be permitted for the calendar year in which a Change in Control
of the Company occurs, or during such calendar year with regard to the prior calendar year if the Awards for the prior calendar year
have not been made by the time of the Change in Control of the Company, with regard to individuals who were Participants at the time
of the Change in Control of the Company.
12.2
Terms and Conditions. Performance-Based Cash Awards made pursuant to this Article XII shall be subject to the following terms
and conditions:
|
(a) |
Vesting
of Performance-Based Cash Award. (i) General. The vesting schedule with respect to any Performance Share Award shall be
no less than one year, and shall be based in whole or in part on the attainment of one or more Performance Goals. |
|
|
|
|
|
(ii)
Waiver of Limitation. The Committee shall be authorized (at the time of grant or thereafter) to provide for earlier vesting in
the event of a Participant’s Retirement, death or Disability. |
|
(b) |
Objective
Performance Goals, Formulae or Standards. |
|
|
|
|
|
(i)
The Committee shall establish the objective Performance Goals and the individual target award (if any) applicable to each Participant
or class of Participants in writing prior to the beginning of the applicable Performance Period or at such later date as the Committee
may determine. Such Performance Goals may incorporate provisions for disregarding (or adjusting for) changes in accounting methods, corporate
transactions (including, without limitation, dispositions and acquisitions) and other similar type events or circumstances. The applicable
Performance Goals shall be based on one or more of the performance criteria set forth in Exhibit A hereto or such other performance criteria
as the Committee shall establish. |
|
|
|
|
|
(ii)
The measurements used in Performance Goals set under the Plan shall be determined in accordance with Accounting Principles Generally
Accepted in the United States of America (“GAAP”) except, to the extent that any objective Performance Goals are used, if
any measurements require deviation from GAAP, such deviation shall be at the discretion of the Committee at the time the Performance
Goals are set or at such later time to the extent determined by the Committee. |
|
(c) |
Payment.
Following the Committee’s determination and certification in accordance with subsection (a) above, the Performance-Based Cash
Award amount shall be delivered to the Eligible Employee, Consultant or Non-Employee Director, or his legal representative, in accordance
with the terms and conditions of the Award agreement. If the Award agreement does not provide when such amount will be paid, except
as provided in the next sentence, such amount shall be paid by no later than the later of: (i) March 15 of the year following the
year in which the applicable Performance Period ends; or (ii) two and one-half (2½) months after the expiration of the fiscal
year of the Company in which the applicable Performance Period ends. Notwithstanding the foregoing, the Committee may place such
conditions on the payment of the payment of all or any portion of any Performance-Based Cash Award as the Committee may determine
and the Committee may (x) provide that the payment of all or any portion of any Performance-Based Cash Award shall be deferred and
(y) permit a Participant to elect to defer receipt of all or a portion of any Performance-Based Cash Award. To the extent applicable,
any deferral under this Section 12.2(d) shall be made in a manner intended to comply with the applicable requirements of Section
409A of the Code. |
ARTICLE
XIII
TERMINATION
13.1
Termination. The following rules apply with regard to the Termination of the Participant’s service.
|
(a) |
Rules
Applicable to Stock Options and Stock Appreciation Rights. Unless otherwise determined by the Committee at grant (or, if no rights
of the Participant are reduced, thereafter): |
|
|
|
|
|
(i)
Termination by Reason of Retirement, Death, or Disability. If a Participant’s Termination is by reason of the Participant’s
Retirement, death or Disability, all Stock Options or Stock Appreciation Rights that are held by such Participant that are vested and
exercisable at the time of the Participant’s Termination may be exercised by the Participant (or, in the case of death, by the
legal representative of the Participant’s estate) at any time within a one-year period from the date of such Termination, but in
no event beyond the expiration of the stated term of such Stock Options or Stock Appreciation Rights; provided, however, if the Participant
dies within such exercise period, all unexercised Stock Options or Stock Appreciation Rights held by such Participant shall thereafter
be exercisable, to the extent to which they were exercisable at the time of death, for a period of one year from the date of such death,
but in no event beyond the expiration of the stated term of such Stock Options or Stock Appreciation Rights. |
(ii)
Involuntary Termination Without Cause. If a Participant’s Termination is by involuntary termination without Cause, all Stock
Options or Stock Appreciation Rights that are held by such Participant that are vested and exercisable at the time of the Participant’s
Termination may be exercised by the Participant at any time within a period of 90 days from the date of such Termination, but in no event
beyond the expiration of the stated term of such Stock Options or Stock Appreciation Rights.
(iii)
Voluntary Termination. If a Participant’s Termination is voluntary (other than a voluntary termination described in Section
13.2(a)(iv)(2) below), all Stock Options or Stock Appreciation Rights that are held by such Participant that are vested and exercisable
at the time of the Participant’s Termination may be exercised by the Participant at any time within a period of 30 days from the
date of such Termination, but in no event beyond the expiration of the stated terms of such Stock Options or Stock Appreciation Rights.
(iv)
Termination for Cause. If a Participant’s Termination: (1) is for Cause or (2) is a voluntary Termination (as provided in
sub-section (iii) above) after the occurrence of an event that would be grounds for a Termination for Cause, all Stock Options or Stock
Appreciation Rights, whether vested or not vested, that are held by such Participant shall thereupon terminate and expire as of the date
of such Termination.
(v)
Unvested Stock Options and Stock Appreciation Rights. Stock Options or Stock Appreciation Rights that are not vested as of the
date of a Participant’s Termination for any reason shall terminate and expire as of the date of such Termination.
|
(b) |
Rules
Applicable to Restricted Stock, Restricted Stock Units, Performance Shares, Other Stock-Based Awards and Performance-Based Cash Awards.
Unless otherwise determined by the Committee at grant or thereafter, and except as otherwise provided in Article XIV, upon a Participant’s
Termination for any reason: (i) during the relevant Restriction Period, all Restricted Stock still subject to restriction shall be
forfeited; and (ii) any unvested Restricted Stock Units, Performance Shares, Other Stock-Based Awards or Performance-Based Cash Awards
shall be forfeited. |
ARTICLE
XIV
CHANGE
IN CONTROL
14.1
Treatment of Awards. Notwithstanding any other provision of the Plan to the contrary, in the event of a Change in Control:
(a)
If and to the extent that a successor to the Company converts, assumes, substitutes or replaces an Award, the vesting restrictions
and/or forfeiture provisions applicable to such Award shall not be accelerated or lapse, and all such vesting restrictions and/or
forfeiture provisions shall continue with respect to any shares of the successor or other consideration that may be received with
respect to such Award; provided, however, that if the Participant’s employment or other service is terminated, other than for
Cause, within 12 months coincident with or immediately following such Change in Control, any unvested Awards shall become fully
vested and exercisable upon such termination of employment or other service.
(b)
If and to the extent that such Awards are not converted, assumed, substituted for or replaced by a successor to the Company, Participants
will receive an amount equal to the consideration per share of Common Stock in such Change in Control (or, in the case of an Appreciation
Award, the consideration per share of Common Stock minus the exercise price or base price of such Award).
14.2
Assumption. For the purposes of this Article XIV, an Award shall be considered
converted, assumed, substituted for or replaced by a successor if following the Change in
Control the option or right confers the right to purchase or receive, for each share of Common
Stock subject to the Award immediately prior to the Change in Control, the consideration
(whether stock, cash or other securities or property) received in the Change in Control by
holders of Common Stock for each share held on the effective date of the transaction (and
if holders were offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares); provided, however, that if such consideration
received in the Change in Control is not solely common stock of the successor, the Committee
may, with the consent of the successor, provide for the consideration to be received pursuant
to the Award, for each share of Common Stock subject thereto, to be solely common stock of
the successor substantially equal in fair market value to the per share consideration received
by holders of Common Stock in the Change in Control. The determination of such substantial
equality of value of consideration shall be made by the Committee, and its determination
shall be conclusive and binding.
14.3
Change in Control. Unless otherwise determined by the Committee in the applicable Award agreement (or other written agreement
approved by the Committee including, without limitation, an employment agreement), a “Change in Control” shall be deemed
to occur following any transaction if: (a) any “person” as such term is used in Sections 13(d) and 14(d) of the Exchange
Act (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any
company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of
Common Stock of the Company), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of 50% or more of the combined voting power of the then outstanding securities of the Company (or its successor corporation);
provided, however, that a merger or consolidation effected solely to implement a recapitalization of the Company shall not constitute
a Change in Control of the Company; or (b) the stockholders of the Company approve a plan of complete liquidation of the Company; provided,
that this subsection (b) shall not constitute a Change in Control with respect to the amount of any payment pursuant to an Award under
this Plan, or any portion thereof, that is triggered upon a Change in Control and that is intended to constitute “non-qualified
deferred compensation” pursuant to Section 409A of the Code; or (c) the consummation of the sale or disposition by the Company
of all or substantially all of the Company’s assets other than (i) the sale or disposition of all or substantially all of the assets
of the Company to a person or persons who beneficially own, directly or indirectly, at least 50% or more of the combined voting power
of the outstanding voting securities of the Company at the time of the sale or (ii) pursuant to a spinoff-type transaction, directly
or indirectly, of such assets to the stockholders of the Company (as further addressed by Section 4.2(b)).
ARTICLE
XV
TERMINATION
OR AMENDMENT OF PLAN
15.1
Termination or Amendment. Notwithstanding any other provision of this Plan, the Board or the Committee may at any time, and
from time to time, amend, in whole or in part, any or all of the provisions of this Plan, or suspend or terminate it entirely, retroactively
or otherwise; provided, however, that, unless otherwise required by law or specifically provided herein, the rights of a Participant
with respect to Awards granted prior to such amendment, suspension or termination, may not be impaired without the consent of such Participant
and, provided further, that without the approval of the stockholders of the Company in accordance with the laws of the State of Delaware,
to the extent required by the applicable provisions of Rule 16b-3, pursuant to the requirements of Nasdaq Rule 5635(c) or such other
applicable stock exchange rule, or, to the extent applicable to Incentive Stock Options under Section 422 of the Code, no amendment may
be made which would:
|
(a) |
increase
the aggregate number of shares of Common Stock that may be issued under this Plan pursuant to Section 4.1 (except by operation of
Section 4.2); |
|
(b) |
increase
the maximum individual Participant limitations for a fiscal year under Section 4.1(b) (except by operation of Section 4.2); |
|
|
|
|
(c) |
change
the classification of Eligible Employees or Consultants eligible to receive Awards under this Plan; |
|
|
|
|
(d) |
decrease
the minimum option price of any Stock Option or Stock Appreciation Right; |
|
|
|
|
(e) |
extend
the maximum option period under Section 6.3; |
|
|
|
|
(f) |
other
than adjustments or substitutions in accordance with Section 4.2, amend the terms of outstanding Awards to reduce the exercise price
or base amount of outstanding Stock Options or Stock Appreciation Rights or to cancel outstanding Stock Options or Stock Appreciation
Rights in exchange for cash, other Awards or Stock Options or Stock Appreciation Rights with an exercise price or base amount that
is less than the exercise price or base amount of the original Stock Options or Stock Appreciation Rights; |
|
|
|
|
(g) |
award
any Stock Option or Stock Appreciation Right in replacement of a canceled Stock Option or Stock Appreciation Right with a higher
exercise price, except in accordance with Section 6.3(g); or |
|
|
|
|
(h) |
require
stockholder approval in order for this Plan to continue to comply with the applicable provisions of Section 422 of the Code. |
The
Committee may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Article IV above or as
otherwise specifically provided herein, no such amendment or other action by the Committee shall impair the rights of any holder without
the holder’s consent.
ARTICLE
XVI
UNFUNDED
PLAN
16.1
Unfunded Status of Plan. This Plan is an “unfunded” plan for incentive and deferred compensation. With respect
to any payments as to which a Participant has a fixed and vested interest but which are not yet made to a Participant by the Company,
nothing contained herein shall give any such Participant any rights that are greater than those of a general unsecured creditor of the
Company.
ARTICLE
XVII
GENERAL
PROVISIONS
17.1
Legend. The Committee may require each person receiving shares of Common Stock pursuant to a Stock Option or other Award under
the Plan to represent to and agree with the Company in writing that the Participant is acquiring the shares without a view to distribution
thereof. In addition to any legend required by this Plan, the certificates for such shares may include any legend that the Committee,
in its sole discretion, deems appropriate to reflect any restrictions on Transfer.
All
certificates for shares of Common Stock delivered under the Plan shall be subject to such stop transfer orders and other restrictions
as the Committee may, in its sole discretion, deem advisable under the rules, regulations and other requirements of the Securities and
Exchange Commission, The Nasdaq Stock Market or any other national securities exchange system upon whose system the Common Stock is then
quoted, any applicable federal or state securities law, and any applicable corporate law, and the Committee may cause a legend or legends
to be put on any such certificates to make appropriate reference to such restrictions.
17.2
Other Plans. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements,
subject to stockholder approval if such approval is required; and such arrangements may be either generally applicable or applicable
only in specific cases.
17.3
No Right to Employment/Directorship/Consultancy. Neither this Plan nor the grant of any Option or other Award hereunder shall
give any Participant or other employee, Consultant or Non-Employee Director any right with respect to continuance of employment, consultancy
or directorship by the Company or any Affiliate, nor shall they be a limitation in any way on the right of the Company or any Affiliate
by which an employee is employed or a Consultant or Non-Employee Director is retained to terminate his or her employment, consultancy
or directorship at any time.
17.4
Tax Withholding. The Company shall have the right to deduct from any payment to be made pursuant to this Plan, or to otherwise
require, prior to the issuance or delivery of any shares of Common Stock or the payment of any cash hereunder, payment by the Participant
of, any federal, state or local taxes required by law to be withheld. Upon the vesting of Restricted Stock (or other Award that is taxable
upon vesting), or upon making an election under Section 83(b) of the Code, a Participant shall pay all required withholding to the Company.
Any statutorily required withholding obligation with regard to any Participant may be satisfied, subject to the advance consent of the
Committee, by reducing the number of shares of Common Stock otherwise deliverable or by delivering shares of Common Stock already owned.
Any fraction of a share of Common Stock required to satisfy such tax obligations shall be disregarded and the amount due shall be paid
instead in cash by the Participant.
17.5
No Assignment of Benefits. No Award or other benefit payable under this Plan shall, except as otherwise specifically provided
by law or permitted by the Committee, be Transferable in any manner, and any attempt to Transfer any such benefit shall be void, and
any such benefit shall not in any manner be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person
who shall be entitled to such benefit, nor shall it be subject to attachment or legal process for or against such person.
17.6
Listing and Other Conditions.
|
(a) |
Unless
otherwise determined by the Committee, as long as the Common Stock is listed on a national securities exchange or quoted in the over-the-counter
market, the issuance of any shares of Common Stock pursuant to an Award shall be conditioned upon such shares being listed on such
exchange or quoted in such market. The Company shall have no obligation to issue such shares unless and until such shares are so
listed or quoted, and the right to exercise any Option or other Award with respect to such shares shall be suspended until such listing
has been effected. |
|
|
|
|
(b) |
If
at any time counsel to the Company shall be of the opinion that any sale or delivery of shares of Common Stock pursuant to an Option
or other Award is or may in the circumstances be unlawful or result in the imposition of excise taxes on the Company under the statutes,
rules or regulations of any applicable jurisdiction, the Company shall have no obligation to make such sale or delivery, or to make
any application or to effect or to maintain any qualification or registration under the Securities Act or otherwise, with respect
to shares of Common Stock or Awards, and the right to exercise any Option or other Award shall be suspended until, in the opinion
of said counsel, such sale or delivery shall be lawful or will not result in the imposition of excise taxes on the Company. |
|
|
|
|
(c) |
Upon
termination of any period of suspension under this Section 17.6, any Award affected by such suspension which shall not then have
expired or terminated shall be reinstated as to all shares available before such suspension and as to shares which would otherwise
have become available during the period of such suspension, but no such suspension shall extend the term of any Award. |
|
|
|
|
(d) |
A
Participant shall be required to supply the Company with any certificates, representations and information that the Company requests
and otherwise cooperate with the Company in obtaining any listing, registration, qualification, exemption, consent or approval the
Company deems necessary or appropriate. |
17.7
Governing Law. This Plan and actions taken in connection herewith shall be governed and construed in accordance with the laws
of the State of Delaware (regardless of the law that might otherwise govern under applicable Delaware principles of conflict of laws).
17.8
Construction. Wherever any words are used in this Plan in the masculine gender they shall be construed as though they were
also used in the feminine gender in all cases where they would so apply, and wherever any words are used herein in the singular form
they shall be construed as though they were also used in the plural form in all cases where they would so apply.
17.9
Other Benefits. No Award granted or paid out under this Plan shall be deemed compensation for purposes of computing benefits
under any retirement plan of the Company or its Affiliates nor affect any benefits under any other benefit plan now or subsequently in
effect under which the availability or amount of benefits is related to the level of compensation.
17.10
Costs. The Company shall bear all expenses associated with administering this Plan, including expenses of issuing Common Stock
pursuant to any Awards hereunder.
17.11
No Right to Same Benefits. The provisions of Awards need not be the same with respect to each Participant, and such Awards
to individual Participants need not be the same in subsequent years.
17.12
Death/Disability. The Committee may in its sole discretion require the transferee of a Participant to supply it with written
notice of the Participant’s death or Disability and to supply it with a copy of the will (in the case of the Participant’s
death) or such other evidence as the Committee deems necessary to establish the validity of the transfer of an Award. The Committee may,
in its discretion, also require the agreement of the transferee to be bound by all of the terms and conditions of the Plan.
17.13
Section 16(b) of the Exchange Act. All elections and transactions under this Plan by persons subject to Section 16 of the
Exchange Act involving shares of Common Stock are intended to comply with any applicable exemptive condition under Rule 16b-3. The Committee
may, in its sole discretion, establish and adopt written administrative guidelines, designed to facilitate compliance with Section 16(b)
of the Exchange Act, as it may deem necessary or proper for the administration and operation of this Plan and the transaction of business
thereunder.
17.14
Section 409A of the Code. The Company does not guarantee the particular tax treatment of an Award granted under this Plan.
Awards made under this Plan are intended to comply with, or be exempt from, the applicable requirements of Section 409A of the Code and
this Plan, and any Award agreement hereunder shall be limited, construed and interpreted in accordance with such intent. In no event
whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest or penalties that may be imposed on
a Participant by Section 409A of the Code or any damages for failing to comply with Section 409A of the Code.
17.15
Successor and Assigns. The Plan shall be binding on all successors and permitted assigns of a Participant, including, without
limitation, the estate of such Participant and the executor, administrator or trustee of such estate.
17.16
Severability of Provisions. If any provision of the Plan shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof, and the Plan shall be construed and enforced as if such provisions had not been included.
17.17
Payments to Minors, Etc. Any benefit payable to or for the benefit of a minor, an incompetent person or other person incapable
of receipt thereof shall be deemed paid when paid to such person’s guardian or to the party providing or reasonably appearing to
provide for the care of such person, and such payment shall fully discharge the Committee, the Board, the Company, its Affiliates and
their employees, agents and representatives with respect thereto.
17.18
Headings and Captions. The headings and captions herein are provided for reference and convenience only, shall not be considered
part of the Plan, and shall not be employed in the construction of the Plan.
17.19
Effect of Prior Plan. All awards under the Prior Plan shall remain subject to the terms of the Prior Plan and any agreement
under which such Award was granted; provided, however, that no award under the Prior Plan that was limited by the application of Section
162(m) shall be subject to the application of negative discretion after December 31, 2018.
ARTICLE
XVIII
EFFECTIVE
DATE OF PLAN
The
Plan is was adopted by the Board on February 25, 2019, and approved by the stockholders of the Company on May 24, 2019. The Effective
Date is the date on which the Board adopted the Plan, subject to stockholder approval within 12 months following the date on which the
Board approved the Plan.
ARTICLE
XIX
TERM
OF PLAN
No
Award shall be granted pursuant to this Plan on or after the tenth anniversary of initial Board approval, as further set forth in Article
XVIII, but Awards granted before that date may extend beyond that date.
ARTICLE
XX
NAME
OF PLAN
This
Plan shall be known as “The Steven Madden, Ltd. 2019 Incentive Compensation Plan.”
EXHIBIT
A
PERFORMANCE
GOALS
1. |
Performance
goals established for purposes of the grant or vesting of Awards shall be based on the attainment of certain target levels of, or
a specified increase or decrease (as applicable) in one or more of the following performance goals (“Performance Goals”): |
|
(a) |
earnings
per share; |
|
|
|
|
(b) |
operating
income; |
|
|
|
|
(c) |
net
income; |
|
|
|
|
(d) |
cash
flow; |
|
|
|
|
(e) |
gross
profit; |
|
|
|
|
(f) |
gross
profit return on investment; |
|
|
|
|
(g) |
gross
margin return on investment; |
|
|
|
|
(h) |
gross
margin; |
|
|
|
|
(i) |
working
capital; |
|
|
|
|
(j) |
earnings
before interest and taxes; |
|
|
|
|
(k) |
earnings
before interest, tax, depreciation and amortization; |
|
|
|
|
(l) |
return
on equity; |
|
|
|
|
(m) |
return
on assets; |
|
|
|
|
(n) |
return
on capital; |
|
|
|
|
(o) |
revenue
growth; |
|
|
|
|
(p) |
total
shareholder return; |
|
|
|
|
(q) |
economic
value added; |
|
|
|
|
(r) |
specified
objectives with regard to limiting the level of increase in all or a portion of the Company’s bank debt or other long-term
or short-term public or private debt or other similar financial obligations of the Company, which may be calculated net of cash balances
and/or other offsets and adjustments as may be established by the Committee in its sole discretion; |
|
|
|
|
(s) |
the
Fair Market Value of the shares of the Company’s Common Stock; |
|
|
|
|
(t) |
the
growth in the value of an investment in the Company’s Common Stock assuming the reinvestment of dividends; |
|
|
|
|
(u) |
reduction
in expenses; |
|
|
|
|
(v) |
customer
satisfaction; |
|
|
|
|
(w) |
customer
loyalty; |
|
|
|
|
(x) |
style
indexes; |
|
|
|
|
(y) |
number
of new patents; |
|
|
|
|
(z) |
employee
retention; |
|
|
|
|
(aa) |
market
share; |
|
|
|
|
(bb) |
market
segment share; |
|
(cc) |
product
release schedules; |
|
|
|
|
(dd) |
new
product innovation; |
|
|
|
|
(ee) |
new
product introduction; |
|
|
|
|
(ff) |
product
cost reduction through advanced technology; |
|
|
|
|
(gg) |
brand
recognition and/or acceptance; |
|
|
|
|
(hh) |
ship
targets; or |
(ii)
such other goals as the Committee may determine.
2. |
The
Committee may, in its sole discretion, also exclude, or adjust to reflect, the impact of an event or occurrence which the Committee
determines should be appropriately excluded or adjusted, including: |
|
(a) |
restructurings,
discontinued operations, extraordinary items or events, and other unusual or non-recurring charges as described in Accounting Standards
Codification (ASC) 225 and/or ASC 360 and/or management’s discussion and analysis of financial condition and results of operations
appearing or incorporated by reference in the Company’s Form 10-K for the applicable year; |
|
|
|
|
(b) |
an
event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management;
or |
|
|
|
|
(c) |
a
change in tax law or accounting standards required by GAAP. |
3. |
Performance
goals may also be based upon individual Participant performance goals, as determined by the Committee, in its sole discretion. |
4. |
In
addition, such Performance Goals may be based upon the attainment of specified levels of Company (or subsidiary, division, other
operational unit or administrative department of the Company) performance under one or more of the measures described above relative
to the performance of other corporations. The Committee may: |
|
(a) |
designate
additional business criteria on which the performance goals may be based; or |
|
|
|
|
(b) |
adjust,
modify or amend the aforementioned business criteria. |
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Steven Madden (NASDAQ:SHOO)
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