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 (Date of earliest event reported): February 3, 2009
FOOTSTAR, INC.
(Exact name of Registrant as specified in its charter)
| |
|
|
|
|
| Delaware
|
|
1-11681
|
|
22-3439443 |
(State or other
jurisdiction of
incorporation)
|
|
(Commission
File Number)
|
|
(IRS Employer
Identification
Number) |
933 MacArthur Boulevard
Mahwah, New Jersey
(Address of principal executive offices)
07430
(Zip Code)
(201) 934-2000
(Registrant’s telephone number, including area code)
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 (see General
Instruction A.2. below):
| o |
|
Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425) |
| |
| o |
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12) |
| |
| o |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
| |
| o |
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
TABLE OF CONTENTS
Item 3.03 Material Modifications to Rights of Security Holders.
On
February 4, 2009, Footstar, Inc. (the “Company”) entered
into
an amendment to the Rights Agreement dated as of March 8, 1999, as amended as of May 31, 2002 (as
so amended, the “Rights Agreement”), between the Company and Mellon Investor Services LLC (formerly
ChaseMellon Shareholder Services, L.L.C.), as rights agent. The amendment was approved at a special meeting of
the Company’s Board of Directors held on January 30, 2008.
Among other things, the amendment reduces the threshold at which a person or group becomes an
“Acquiring Person” under the Rights Agreement from 15% to 4.75% of the Company’s then-outstanding
common shares. The Rights Agreement, as amended, exempts shareholders whose beneficial ownership as
of 4:00 p.m., New York City time, on February 3, 2009 exceeded 4.75% of the Company’s
then-outstanding common shares so long as they do not acquire additional common shares, except as
otherwise provided by existing agreements. The amendment also eliminates provisions of the Rights
Agreement exempting certain “Qualifying Offers” for the Company’s common shares from triggering the
exercisability of the outstanding rights issued pursuant to the Rights Agreement. The Rights
Agreement as amended will terminate on March 8, 2012, unless terminated or extended.
The amendment to the Rights Agreement is intended to help preserve the value of the Company’s
net operating loss carryforwards (“NOLs”) and related tax benefits. The Company’s ability to use
its NOLs could be substantially reduced if the Company experiences an “ownership change,” as
defined under Section 382 of the Internal Revenue Code of 1986 (the “Code”). The calculation of an
ownership change under the Code is based on ownership changes in the Company’s common shares by
shareholders that own, or are deemed to own, 5% or more of the Company’s common shares, and changes
are tested over a rolling three-year period.
The Rights Agreement amendment does not ensure that the Company’s NOLs will be protected from
an ownership change as defined in the Code, and there can be no assurance that such an ownership
change will not occur.
The rights issued pursuant to the Rights Agreement are in all respects subject to and governed
by the provisions of the Rights Agreement, as amended. Copies of the Rights Agreement and the
amendment are available free of charge from the Company. The foregoing description of the amendment
to the Rights Agreement is qualified in its entirety by reference to the full text of the
amendment, a copy of which is attached as Exhibit 4.1 and incorporated by reference.
Item 7.01 Regulation FD Disclosure.
On
February 3, 2009, the Company issued a press release relating to the amendment of
the Rights Plan. A copy of the press release issued by the Company is attached as Exhibit 99.1 and
incorporated by reference.
The information included or incorporated by reference in this Item 7.01 will not be deemed
“filed” for purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to
the liabilities of that Section, nor will it be deemed incorporated by reference in any filing
under the Securities Act of 1933 or the Securities Exchange Act of 1934, regardless of any general
incorporation language in such filing.