As filed with the Securities and Exchange Commission on February 7, 2006
Registration No. 333-_____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FOOTSTAR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-3439443
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR IDENTIFICATION NO.)
ORGANIZATION)
933 MACARTHUR BOULEVARD
MAHWAH, NEW JERSEY 07430
(201) 934-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
FOOTSTAR, INC.
2006 NON-EMPLOYEE DIRECTOR STOCK PLAN
(Full title of the plan)
=====================================
Maureen Richards, Esq.
Senior Vice President, General
Counsel and Corporate Secretary
Footstar, Inc.
933 MacArthur Boulevard
Mahwah, New Jersey 07430
(201) 934-2334
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy of communications to:
SIMEON GOLD, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
=============================== =================== ====================== ======================== =================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE
------------------------------- ------------------- ---------------------- ------------------------ -----------------
COMMON STOCK,
PAR VALUE $0.01 PER SHARE 458,044 $3.955 $1,811,564 $194
=============================== =================== ====================== ======================== =================
(1) Of the shares of Common Stock being registered hereby, 58,044 shares were
authorized for issuance under the Footstar, Inc. 1996 Non-Employee Director
Stock Plan, a predecessor plan to the Footstar, Inc. 2006 Non-Employee Director
Stock Plan described herein. Pursuant to Rule 416(c) under the Securities Act of
1933, as amended, this Registration Statement also covers an indeterminate
number of shares of Common Stock of the Registrant as may be issued to prevent
dilution resulting from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
We incorporate herein by reference the following documents
that Footstar, Inc. filed with the Securities and Exchange Commission (the
"Commission"):
(a) Footstar, Inc.'s Annual Report on Form 10-K for the fiscal
year ended January 1, 2005 filed with the SEC on September 29, 2005.
(b) Footstar, Inc.'s Annual Report on Form 10-K for the fiscal
year ended January 3, 2004 filed with the SEC on April 8, 2005 and
Amendment No. 1 to its Annual Report on Form 10-K for the fiscal year
ended January 3, 2004 filed with the SEC on September 29, 2005,
Footstar, Inc.'s Quarterly Reports on Form 10-Q for the quarterly
periods ended April 2, 2005 filed with the SEC on September 30, 2005,
July 2, 2005 filed with the SEC on September 30 and October 1, 2005
filed with the SEC on October 9, 2005, and its Current Reports on Form
8-K filed with the Commission on January 20, January 27, January 28,
February 1*, February 4*, February 17*, February 22, March 17*, April
7, April 29*, May 18*, June 3, June 15*, July 8, July 29*, August 17*,
August 26, October 3*, November 1*, November 3, November 10*, November
23, November 30*, December 2*, and December 22, 2005, and January 5 and
February 7, 2006.*
(c) The description of Footstar' Common Stock, par value $0.01
per share, contained in the Form 10/A Information Statement as filed
with the Commission on September 25, 1996 (SEC File No. 001-11681)
pursuant to Section 12 of the Securities Exchange Act of 1934 including
any amendment or report filed for the purpose of updating such
description.
All documents that Footstar subsequently files with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, will be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Unless expressly incorporated into this
Registration Statement, a report (or portion thereof) furnished on Form 8-K
shall not be incorporated by reference into this Registration Statement. Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
--------------------
* Report furnished to the Commission under Item 2.02, Results of Operations and
Financial Condition, or Item 7.01, Regulation FD Disclosure. Pursuant to General
Instruction B of Form 8-K, reports furnished under Item 2.02 and Item 7.01 are
not deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that section.
Footstar, Inc. is not incorporating, and will not incorporate, by reference this
report into a filing under the Securities Act or the Exchange Act.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law. Under
Section 145 of the General Corporation Law of the State of Delaware, as amended
from time to time (the "General Corporation Law"), Footstar, Inc. is empowered
to indemnify its directors and officers in the circumstances therein provided.
We sometimes refer to Footstar herein as the "Company." Certain portions of
Section 145 are summarized below:
Section 145(a) of the General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
Section 145(b) of the General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon adjudication that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
Section 145(c) of the General Corporation Law provides that to
the extent that a present or former director or officer of a corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 145(a) and (b), or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
Section 145(d) of the General Corporation Law provides that
any indemnification under Sections 145(a) and (b) (unless ordered by a court)
shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Sections 145(a) and (b). Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who were not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (3) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
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Section 145(e) of the General Corporation Law provides that
expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation
as authorized in Section 145. Such expenses (including attorneys' fees) incurred
by former directors and officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the corporation deems appropriate.
Section 145(f) of the General Corporation Law provides that
the indemnification and advancement of expenses provided by, or granted pursuant
to, Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in such person's official capacity and as to action in another
capacity while holding such office.
Section 145(g) of the General Corporation Law provides that a
corporation shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's capacity as such, whether or not the corporation would have the power
to indemnify such person against such liability under Section 145.
Certificate of Incorporation. The Company's amended and
restated certificate of incorporation provides that a director of the Company
shall, to the fullest extent permitted by the General Corporation Law, not be
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director.
The Company's amended and restated certificate of
incorporation provide that each person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be made
a party to, or is involved in any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
Company or is or was serving at the request of the Company as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, shall be indemnified and held harmless by the Company to the fullest
extent permitted by the General Corporation Law. The right to indemnification
conferred under the amended and restated certificate of incorporation shall also
include the right to be paid by the Company the expenses incurred in connection
with any such proceeding in advance of its final disposition to the fullest
extent authorized by the General Corporation Law. The right to indemnification
conferred in the amended and restated certificate of incorporation is a contract
right.
The Company's amended and restated certificate of
incorporation provide that the Company may, by action of its Board of Directors,
provide indemnification to such of the employees and agents of the Company to
such extent and to such effect as the Board of Directors of the Company shall
determine to be appropriate and authorized by the General Corporation Law.
Neither the amendment nor repeal of the Company's amended and
restated certificate of incorporation, nor the adoption of any provision of the
Company's amended and restated certificate of incorporation or the bylaws of the
Company, nor, to the fullest extent permitted by the General Corporation Law,
any modification of law, shall eliminate or reduce the effect of the Company's
amended and restated certificate of incorporation in respect of any acts or
omissions occurring prior to such amendment, repeal, adoption or modification.
The amended and restated certificate of incorporation permits
the Company to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss incurred by such person in any such
II-3
capacity or arising out of his status as such, whether or not the Company would
have the power to indemnify him against such liability under the General
Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 - Second Amended and Restated Certificate of
Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K filed on February 7, 2006).
4.2 - Certificate of Amendment to Second Amended and
Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit
3.2 to the Company's Current Report on Form 8-K
filed on February 7, 2006).
4.3 - By-Laws of the Company (incorporated by reference
to Exhibit 3.3 to the Company's Current Report on
Form 8-K filed on February 7, 2006).
5 - Opinion of Weil, Gotshal & Manges LLP.
23.1 - Consent of Amper, Politziner & Mattia, P.C.
23.2 - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 - Power of Attorney (included as part of the
signature page to this Registration Statement and
incorporated herein by reference).
99 - Footstar, Inc. 2006 Non-Employee Director Stock
Plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the registration
statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the registration statement.
Notwithstanding the foregoing, any
increase or decrease in the volume
of securities offered (if the total
dollar value of securities offered
would not exceed that which was
registered) and any deviation from
the low or high end of the
estimated maximum offering range
may be reflected in the form of
prospectus filed with the
Commission pursuant to Rule 424(b)
if, in the aggregate, the changes
in volume and price represent no
more than 20 percent in the maximum
aggregate offering price set forth
in the "Calculation of Registration
Fee" table in the effective
registration statement.
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(iii) To include any material information
with respect to the plan of
distribution not previously
disclosed in the Registration
Statement or any material change to
such information in the
Registration Statement;
Provided, however, that: paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the Registration Statement is on Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(4) That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser
in the initial distribution of securities:
The undersigned registrant undertakes that in a
primary offering of securities of the undersigned
registrant pursuant to this Registration Statement,
regardless of the underwriting method used to sell
the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any
of the following communications, the undersigned
registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to
such purchaser:
(i) Any preliminary prospectus or
prospectus of the undersigned
registrant relating to the offering
required to be filed pursuant to
Rule 424;
(ii) Any free writing prospectus relating
to the offering prepared by or on
behalf of the undersigned registrant
or used or referred to by the
undersigned Registrant;
(iii) The portion of any other free
writing prospectus relating to the
offering containing material
information about the undersigned
registrant or its securities
provided by or on behalf of the
undersigned registrant; and
(iv) Any other communication that is an
offer in the offering made by the
undersigned registrant to the
purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
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(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Mahwah, State of New Jersey, on February 7, 2006.
FOOTSTAR, INC.
By: /s/ Maureen Richards
--------------------------------------
Name: Maureen Richards
Title: Senior Vice President, General Counsel
and Corporate Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Jeffrey A. Shepard and Maureen
Richards, or any of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to sign any
related Registration Statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing required and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or their substitute or substitutes,
could lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Jeffrey A. Shepard Chief Executive Officer, President and February 7, 2006
------------------------------- Director (Principal Executive Officer)
Jeffrey A. Shepard
/s/ Richard L. Robbins Senior Vice President Financial Reporting February 7, 2006
------------------------------- and Control (Principal Financial Officer
Richard L. Robbins and Principal Accounting Officer)
/s/ Jonathan M. Couchman Chairman of the Board and Director February 7, 2006
-------------------------------
Jonathan M. Couchman
/s/ Eugene I. Davis Director February 7, 2006
-------------------------------
Eugene I. Davis
/s/ Adam Finerman Director February 7, 2006
-------------------------------
Adam Finerman
/s/ Alan Kelly Director February 7, 2006
-------------------------------
Alan Kelly
/s/ Gerald F. Kelly, Jr. Director February 7, 2006
-------------------------------
Gerald F. Kelly, Jr.
/s/ Michael O'Hara Director February 7, 2006
-------------------------------
Michael O'Hara
SIGNATURE TITLE DATE
--------- ----- ----
/s/ George A. Sywassink Director February 7, 2006
-------------------------------
George A. Sywassink
/s/ Alan I. Weinstein Director February 7, 2006
-------------------------------
Alan I. Weinstein
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 - Second Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K filed on February 7,
2006).
4.2 - Certificate of Amendment to Second Amended and Restated
Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Current Report on
Form 8-K filed on February 7, 2006).
4.3 - By-Laws of the Company (incorporated by reference to Exhibit
3.3 to the Company's Current Report on Form 8-K filed on
February 7, 2006).
5 - Opinion of Weil, Gotshal & Manges LLP.
23.1 - Consent of Amper, Politziner & Mattia, P.C.
23.2 - Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24 - Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).
99 - Footstar, Inc. 2006 Non-Employee Director Stock Plan.