<PAGE>
As filed with the Securities and Exchange Commission December 30, 1998
Registration No. 33 - _______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-------------------------------
SPIEGEL, INC.
(Exact name of issuer as specified in its charter)
Delaware 36-2593917
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3500 LACEY ROAD, DOWNERS GROVE, ILLINOIS 60515-5432
(Address of principal executive office) (Zip Code)
SPIEGEL GROUP INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
------------------------------
JAMES W. SIEVERS COPY TO:
Office of the President Jay A. Lipe
Chief Financial Officer Rooks, Pitts and Poust
Spiegel, Inc. 10 South Wacker Drive, Suite 2300
3500 Lacey Road Chicago, Illinois 60606
Downers Grove, Illinois 60515-5432 (312) 876-1700
(Name and address of agent for service)
-----------------------
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Securities Proposed Proposed Aggregate Amount of
to be Registered Maximum Amount Maximum Offering Price (1) Registration Fee
to be Offering Price Per (1)
Registered Share (1)
<S> <C> <C> <C> <C>
Class A Non-
Voting Common
Stock, Par Value
$1.00 Per Share
1,000,000 $4.4375 $4,437,500.00 $1,233.63
</TABLE>
- --------------------------------------------------------------------------------
(1) The shares are to be offered at prices not presently determinable. Pursuant
to Rule 457(h)(i) and Rule 457(c), the offering price is calculated solely for
the purpose of determining the registration fee and is based on the average of
the high and low prices reported in the WALL STREET JOURNAL of December 28,
1998, of the Class A Non-Voting Common Stock as quoted on the NASDAQ National
Market System on December 24, 1998.
The Exhibit Index required by Item 601 of Regulation S-K is located at page
II-10.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the plan listed on the cover page of this registration
statement (this "Registration Statement"), pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the
Registration Statement:
(a) The registrant's latest annual report on Form 10-K, or, if the
financial statements therein are more current, the registrant's latest
prospectus, other than the prospectus of which this document is a part, filed
pursuant to Rule 424(b) or (c) of the Securities Exchange Commission under the
Securities Act of 1933.
II-2
<PAGE>
(b) All other reports filed by the registrant pursuant to Sections
13(a) or 15(d) of the Securities and Exchange Act of 1934 since the end of the
fiscal year covered by the annual report or the prospectus referred to in (a)
above.
(c) The descriptions of the registrant's Class A Non-Voting Common
Stock which are contained in the registrant's registration statements filed
under Section 12 of the Securities Exchange Act of 1934, including any amendment
or reports filed for the purpose of updating such descriptions.
All documents subsequently filed by the registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to the Registration Statement which
indicates that all of the shares of Class A Non-Voting Common Stock offered have
been sold or which deregisters all of such shares then remaining unsold, shall
be deemed to be incorporated by reference in the Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as; so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh of the registrant's Restated Certificate of
Incorporation states as follows:
"A director of the Corporation shall not be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty
as a director except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General
Corporation Law as the same exists or may hereafter be amended."
Further, Article XI of the registrant's By-Laws states as follows:
"(a) The Corporation shall indemnify subject to the
requirements of Subsection (d) any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee,
fiduciary or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines, penalties, taxes and
amounts paid in settlement
II-3
<PAGE>
actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
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 his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he 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 reasonable cause to believe that his conduct was
unlawful.
(b) The Corporation shall indemnify subject to the
requirements of Subsection (d) any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he 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 Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent
of the Corporation, or a director, officer, employee, fiduciary or
agent of any other enterprise serving at the request of the
Corporation, has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Subsections (a) and
(b), or in defense of any claim, issue or matter therein, the
Corporation shall indemnify him against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
(d) Any indemnification under Subsection (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
director, officer, employee, fiduciary or agent is proper in the
circumstances because he has met the applicable standard of conduct set
forth in Subsections (a) and (b). Such determination shall be made (1)
by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or
(2) if such quorum is not obtainable, or, even if obtainable a quorum
of disinterested directors so directs, by independent legal counsel in
a written opinion, or (3) by the stockholders.
(e) Expenses incurred by a director, officer, employee,
fiduciary or agent in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking
by or on behalf of the director,
II-4
<PAGE>
officer, employee, fiduciary or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Section.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other Subsections of this Section shall
not limit the Corporation from providing any other indemnification
permitted by law nor shall it be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may
be entitled under any by-law, agreement, vote of stockholder or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office.
(g) The provisions of this Section shall be applicable to all
actions, suits or proceedings pending at the time or commenced after
the adoption of this Section, whether arising from acts or omissions to
act occurring, or based on claims asserted, before or after the
adoption of this Section. A finding that any provision of this Section
is invalid or of limited application shall not affect any other
provision of this Section nor shall a finding that any portion of any
provision of this Section is invalid or of limited application affect
the balance of such provision.
(h) The Corporation shall have 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, fiduciary
or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the
provisions of this Section.
(i) All terms contained in this Section shall have the meaning
given to them by Section 145 of the Delaware General Corporation Law.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 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."
Section 145 of the General Corporation Law of the State of Delaware
provides, generally, that a corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to any suit or
proceeding because such person is or was a director, officer, employee or agent
of the corporation or was servicing, at the request of the corporation, as a
director, officer, employee or agent of another enterprise against all costs
actually and reasonably incurred by him in connection with such suit or
proceeding if he acted in good faith and in a manner he reasonably believed not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Similar indemnity is permitted to be provided to such persons in
connection with an action or suit by or in the right of a corporation, provided
such person acted in good faith and in a manner he believed to be not opposed to
the best interests of the corporation, and provided further that such person
shall not have been adjudged liable for negligence or misconduct in the
performance of his duty to the corporation.
II-5
<PAGE>
Section 102(b) of the General Corporation Law of the State of Delaware
in dealing with matters that may be contained in the certificate of
incorporation, provides that the corporation, in its original certificate or an
amendment thereto, may include a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for damages for
the breach of the director's fiduciary duty. Such a provision may not eliminate
or limit the director's liability for a breach of the duty of loyalty, for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for an unlawful payment of dividends or unlawful stock
purchases or redemptions, or for any transaction from which the director derived
an improver personal benefit.
The registrant has obtained directors' and officers' insurance which
insures directors and officers of the registrant against wrongful acts as a
director or officer, including civil liabilities pursuant to the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to the Registration Statement are listed in the
Exhibit Index elsewhere herein.
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;
(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 paragraph (a)(1)(i) and (a)
(1)(ii) shall not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or
Section 15(d) of the
II-6
<PAGE>
Securities and Exchange Act of 1934 that are
incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deeded to be the initial bona fide offering thereof.
(3) To remove registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
or 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 herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described in
Item 6, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in such 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 such Act and will be governed by the final
adjudication of such issue.
II-7
<PAGE>
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 Chicago, State of Illinois, on the 28th day
of December, 1998.
SPIEGEL, INC.
<TABLE>
<S> <C>
By: /s/ Michael R. Moran By: /s/ James W. Sievers
---------------------------------------- ---------------------------------
Michael R. Moran, Member of the James W. Sievers, Member of the
Office of the President and Chief Legal Office of the President and Chief
Officer (Co-Principal Executive Officer) Financial Officer (Co-Principal
Executive Officer)
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 28th day of December, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael R. Moran Member of the Office of the President, Chief Legal
- --------------------------- Officer and Director (Co-Principal Executive Officer)
Michael R. Moran
/s/ James W. Sievers Member of the Office of the President, Chief
- --------------------------- Financial Officer and Director (Co-Principal Executive
James W. Sievers Officer)
/s/ Dr. Michael Otto Director
- ---------------------------
Dr. Michael Otto
/s/ Thomas Bohlmann Director
- ---------------------------
Thomas Bohlmann
/s/ Dr. Michael E. Cruesemann Director
- -----------------------------
Dr. Michael E. Cruesemann
/s/ Richard T. Fersch Director
- ---------------------------
Richard T. Fersch
</TABLE>
II-8
<PAGE>
<TABLE>
<S> <C>
/s/ Hans Jorg Hammer Director
- ---------------------------
Hans Jorg Hammer
/s/ Horst R. Hansen Director
- ---------------------------
Horst R. Hansen
/s/ John W. Irvin Director
- ---------------------------
John W. Irvin
/s/ Siegfried Kockmann Director
- ---------------------------
Siegfried Kockmann
/s/ Dr. Peter Mueller Director
- ---------------------------
Dr. Peter Mueller
/s/ Gert Rietz Director
- ---------------------------
Gert Rietz
/s/ Dr. Peer Witten Director
- ---------------------------
Dr. Peer Witten
/s/ Martin Zaepfel Director
- ---------------------------
Martin Zaepfel
/s/ Derry L. Behm Divisional Vice President;
- ---------------------------
Derry L. Behm Corporate Controller
- --------------------------- Director
George D. Ittner
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
4(a) Restated Certificate of Incorporation of the Company 11
*4(b) By-Laws of the Company (filed by incorporation by reference to
the Company's Registration Statement on Form S-3
(File No. 33-50739)) N/A
*4(c) Specimen Stock Certificate (filed by incorporation by reference
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1998) N/A
5 Opinion of Rooks, Pitts and Poust regarding the legality of the
Class A Non-Voting Common Stock being registered. 16
15 Not applicable N/A
23(a) Consent of Rooks, Pitts and Poust (contained in Exhibit 5) N/A
23(b) Consent of KPMG Peat Marwick LLP 18
24 Powers of Attorney 19
28(a) Spiegel Group Incentive Stock Option Plan as of December 28, 1998. 34
28(b) Form of Stock Option Agreement 43
</TABLE>
- ---------------------
* Incorporated by reference
II-10
<PAGE>
Exhibit 4(a)
RESTATED CERTIFICATE OF INCORPORATION
OF SPIEGEL, INC.
SPIEGEL, INC., a corporation organized and existing under the laws of
the State of Delaware, hereby certifies as follows:
1. The name of the corporation is SPIEGEL, INC. The
corporation was originally incorporated in Delaware under the name
MIDWEST MAIL-ORDER COMPANY. The date of filing its original Certificate
of Incorporation with the Secretary of State of the State of Delaware
was August 17, 1965.
2. This Restated Certificate of Incorporation restates and
further amends the Certificate of Incorporation of this corporation by
changing the first paragraph of ARTICLE FOURTH thereof. The text of the
Certificate of Incorporation is amended hereby to read in its entirety
as set forth in Appendix A hereto.
3. The Restated Certificate of Incorporation herein certified
was recommended to the stockholders for adoption by the unanimous
written consent of the board of directors pursuant to Section 141(f) of
the General Corporation Law of the State of Delaware and was duly
adopted by written consent of stockholders possessing 99.94% of the
voting stock of the corporation in accordance with the applicable
provisions of Sections 228, 242 and 245 of the General Corporation Law
of the State of Delaware. As provided in Section 228 of the General
Corporation Law of the State of Delaware, prompt written notice of the
action so taken by the holders of said 99.95% of the voting stock of
the corporation was given to every stockholder entitled to such notice.
4. When the Restated Certificate of Incorporation herein
certified becomes effective the aggregate of capital represented by all
issued shares immediately after the effective date of the Restated
Certificate of Incorporation will not be less than the aggregate amount
of capital represented by all issued shares immediately before the
effective date of the Restated Certificate of Incorporation and,
therefore, the capital of the corporation will not be reduced under or
by reason of the Restated Certificate of Incorporation.
<PAGE>
IN WITNESS WHEREOF, said SPIEGEL, INC. has cause this certificate to be
signed by Michael R. Moran, its Office of the President, General Counsel, and
attested by James H. Ihrke, its Assistant Secretary, this 18th day of March,
1998.
SPIEGEL, INC.
By: /s/ Michael R. Moran
------------------------
Office of the President,
General Counsel
ATTEST: SPIEGEL, INC.
By: /s/ James J. Ihrke
-----------------------------------
James H. Ihrke, Assistant Secretary
2
<PAGE>
APPENDIX A
RESTATED CERTIFICATE OF INCORPORATION
OF SPIEGEL, INC.
FIRST: The name of the corporation is SPIEGEL, INC.
SECOND: Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name and address of its registered agent is The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which a corporation may be organized under
the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is One Hundred Thirty-Seven Million
Five Hundred Thousand (137,500,000) shares, of which stock Sixteen Million
(16,000,000) shares of $1.00 par value each shall be Class A Non-Voting Common
Stock, and One Hundred Twenty-One Million Five Hundred Thousand (121,500,000)
shares of $1.00 par value each shall be Class B Voting Common Stock.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof are as follows:
(a) Each holder of Class B Voting Common Stock shall have one
vote in respect of each share of Class B Voting Common Stock held by
him of record on the books of the corporation on all matters voted upon
by the stockholders.
(b) Except as otherwise provided by law or this Certificate of
Incorporation, the holders of Class A Non-Voting Common Stock shall not
have any voting rights in respect of such stock.
(c) This Certificate of Incorporation may be amended by the
affirmative vote of the holders of a majority of the shares of Class B
Voting Common Stock entitled to vote to increase or decrease (but not
below the number of shares thereof then outstanding) the number of
authorized shares of Class A Non-Voting Common Stock or Class B Voting
Common Stock without the vote or approval of the holders of the then
issued and outstanding shares of Class A Non-Voting Common Stock.
<PAGE>
(d) This corporation may, by its By-Laws or otherwise, impose
restrictions upon the sale of its Class B Voting Common Stock.
(e) The Class A Non-Voting Common Stock and the Class B Voting
Common Stock shall participate equally on a share-for-share basis as to
all dividends declared from time to time.
(f) Except as otherwise provided in paragraphs (a), (b), (c)
and (d) of this Article Fourth, the powers, preferences, treatment and
rights and the qualifications, limitations or restrictions of the
shares of Class A Non-Voting Common Stock and the shares of Class B
Voting Common Stock shall be identical. Any amendment to paragraph (e)
or to this paragraph (f) of this Article Fourth shall require approval
by the affirmative vote of the holders of a majority of the issued and
outstanding shares of Class A Non-Voting Common Stock and the
affirmative vote of the holders of a majority of the issued and
outstanding shares of Class B Voting Common Stock, each Class voting
separately as a class.
FIFTH: The number of directors of the corporation shall be fixed by the
By-Laws and may be increased or decreased from time to time in the manner
specified therein; provided, however, that the number of directors shall not be
less than three. In the event of any increase in the number of directors, the
additional directors may be elected as provided in the By-Laws. Elections of
directors need not be by written ballot. Any director may be removed at any
time, either for or without cause, by the affirmative vote of a majority in
interest of the stockholders of record of the corporation entitled to vote,
given at a special meeting of such stockholders called for the purpose or as
otherwise provided by law. The board of directors shall have the power to make,
adopt, alter, amend and repeal from time to time the By-Laws of the corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to alter and repeal By-Laws made by the board of directors;
SIXTH: (a) No contract or transaction between the corporation and
one or more of its directors or officers, or between the corporation
and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the board of
directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for
such purpose, if:
2
<PAGE>
(1) The material facts as to his relationship or
interest and as to the contract or transaction are
disclosed or are known to the board of directors or the
committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum;
or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the board of directors, a committee thereof,
or the stockholders.
(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes the contract or
transaction.
SEVENTH: A director of the corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law
as the same exists or may hereafter be amended.
3
<PAGE>
Exhibit 5
[LETTERHEAD]
December 28, 1998
Spiegel, Inc.
Corporate Headquarters
3500 Lacey Road
Downers Grove, Illinois 60515-5432
Dear Sirs:
We have acted as counsel to you (the "Company") in connection with the
preparation of the Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission on December 30, 1998 (the "Registration
Statement") pertaining to the registration of an offering of up to 1,000,000
shares of the Company's Class A Non-Voting Common Stock, $1.00 par value (the
"Common Stock").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion, including the following: the Certificate of Incorporation and By-Laws
of the Company, as amended and resolutions adopted by the Board of Directors and
the principal stockholder of the Company.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies, and the authenticity of the originals of
all documents submitted to us as copies. We have also assumed the genuineness of
the signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Company, and the due authorization, execution and
delivery of all documents by the parties thereto other than the Company.
<PAGE>
Spiegel, Inc.
December 28, 1998
Page 2
Based on the foregoing, we are of the opinion that:
(1) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware.
(2) The Common Stock, when duly executed and delivered by
authorized officers of the Company and issued upon receipt of the
consideration to be paid therefor, will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit tot he
Registration Statement and to the reference to this firm under the section
entitled "Legal Matters" in the Registration Statement.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
ROOKS, PITTS AND POUST
By: /s/ James H. Ihrke
-------------------------
James H. Ihrke
<PAGE>
Exhibit 23(b)
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Spiegel, Inc.:
We consent to incorporation by reference in this registration statement on
Form S-8 of Spiegel, Inc. of our report dated February 11, 1998, relating to
the consolidated balance sheets of Spiegel, Inc. and subsidiaries as of
January 3, 1998 and December 28, 1996 and the related consolidated statements
of earnings, stockholders' equity and cash flows for each of the years in the
three-year period ended January 3, 1998 and related financial statement
schedule, which reports are incorporated by reference or appear in the
Spiegel, Inc. Form 10-K for the year ended January 3, 1998.
Chicago, Illinois
December 22, 1998
/s/ KPMG Peat Marwick LLP
-------------------------------
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Dr. Michael Otto
------------------------------------
Dr. Michael Otto
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Thomas Bohlmann
------------------------------------
Thomas Bohlmann
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Dr. Michael E. Cruesemann
------------------------------------
Dr. Michael E. Cruesemann
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: November 24, 1998
/s/ Richard T. Fersch
------------------------------------
Richard T. Fersch
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Hans Jorg Hammer
------------------------------------
Hans Jorg Hammer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Horst R. Hansen
------------------------------------
Horst R. Hansen
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ John W. Irvin
------------------------------------
John W. Irvin
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Siegfried Kockmann
------------------------------------
Siegfried Kockmann
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Michael R. Moran
------------------------------------
Michael R. Moran
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Dr. Peter Mueller
------------------------------------
Dr. Peter Mueller
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Gert Rietz
------------------------------------
Gert Rietz
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ James W. Sievers
------------------------------------
James W. Sievers
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Dr. Peer Witten
------------------------------------
Dr. Peer Witten
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Martin Zaepfel
------------------------------------
Martin Zaepfel
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below hereby constitutes and appoints James W. Sievers and Michael R. Moran, and
each of them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement of Spiegel, Inc. on Form S-8 and any and all amendments
(including post-effective amendments) thereto, regarding the offering of options
to acquire Shares of Class A Non-Voting Common Stock and the acquisition of such
Shares in connection with the Spiegel Group Incentive Stock Option Plan, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite 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 substitutes, may lawfully
do or cause to be done by virtue hereof.
Date: December 28, 1998
/s/ Derry L. Behm
------------------------------------
Derry L. Behm
<PAGE>
Exhibit 28(a)
SPIEGEL GROUP
INCENTIVE STOCK OPTION PLAN
SECTION 1. PURPOSE.
The purpose of this Incentive Stock Option Plan (the "Plan") is to
encourage stock ownership by certain semi-monthly salaried employees of Spiegel,
Inc., a Delaware corporation ("Spiegel") and its "subsidiary corporations"
(collectively the "Corporation"), so that they may acquire a proprietary
interest in the success of the Corporation. The term "subsidiary corporation"
shall be defined in the same manner as such term is defined in Section 424(f) of
the Internal Revenue Code of 1986, as amended (the "Code") and shall include
subsidiary corporations which become such after the adoption of the Plan. The
Plan is intended to provide an incentive for maximum effort in the successful
operation of the Corporation and to encourage certain semi-monthly salaried
employees of the Corporation to remain in the employ of the Corporation. It is
further intended that, except in certain limited cases, the options granted
pursuant to the Plan shall constitute "Incentive Stock Options" within the
meaning of Section 422 of the Code.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by a Stock Option Committee (the
"Committee") which shall consist of three members of the Board of Directors of
Spiegel (the "Board of Directors") who are not semi-monthly salaried employees
of the Corporation and who are appointed to the Committee from time to time by
the Board of Directors. If any member of the Committee becomes a semi-monthly
salaried employee of the Corporation, his membership on the Committee shall
automatically terminate. A majority of the Committee shall constitute a quorum
and acts of a majority of the members present at any meeting at which a quorum
is present, or acts approved in writing by all members of the Committee, shall
be deemed to be valid acts of the Committee. No member of the Committee shall be
eligible to receive an option under the Plan.
The Committee shall select one of its members to serve as Chairman,
shall appoint one of its members as Secretary, who shall maintain a record of
its actions and decisions, and shall hold meetings from time to time as it may
determine. The Committee shall have authority to:
(a) Determine which of the eligible employees of the
Corporation (determined under Section 3 hereof) shall be granted
options, when such options shall be granted and the number of shares
and terms with respect to each such option;
(b) Prescribe rules and regulations for administering the
Plan; and
(c) Decide any questions arising as to the interpretation or
application of any provision under this Plan.
The determination of the Committee as to any of these matters shall be final and
binding upon all persons whomsoever and shall be reported to the Board of
Directors at its next ensuing meeting.
<PAGE>
SECTION 3. ELIGIBILITY.
The persons who shall be eligible to receive options pursuant to this
Plan shall be such of the semi-monthly salaried employees of the Corporation as
the Committee shall select from time to time. A grantee of an option under this
Plan (an "Optionee") may hold more than one option hereunder, but only on the
terms and conditions hereinafter set forth. Notwithstanding any of the other
provisions of this Plan, options shall not be granted hereunder to an individual
who then owns stock possessing more than ten percent (10%) (as determined under
Section 422(b)(6) of the Code) of the total combined voting power of all classes
of stock of Spiegel, or of a parent or a subsidiary corporation (as those terms
are defined in Sections 424(e) and 424(f) of the Code) of Spiegel, such
ownership to be determined by application of the applicable attribution rules
under the Code.
SECTION 4. STOCK TO BE ISSUED UNDER THIS PLAN.
The stock to be issued upon the exercise of options granted under this
Plan shall be shares of the $1.00 par value per share Class A Non-Voting Common
Stock of Spiegel ("Class A Stock") which may either be authorized and unissued
shares or issued shares held in or hereafter acquired for the treasury of
Spiegel. The aggregate number of shares of Class A Stock which may be issued
under options granted hereunder shall not exceed One Million (1,000,000) shares.
In the event that any outstanding option under this Plan expires or is
terminated, the shares of Class A Stock allocable to the unexercised portion of
such option may again be subject to an option under the Plan.
Spiegel shall not be required to issue or deliver any certificate for
shares of its Class A Stock purchased upon the exercise of all or any part of an
option before (a) the admission of such shares to listing on any stock exchange
on which such stock may then be listed, or, if applicable, approved for
inclusion on the National Market System of the NASD and (b) completion of any
registration or other qualification of such shares under any state or federal
law or ruling or regulation of any governmental regulatory body that Spiegel
shall, in its sole discretion, determine is necessary or advisable.
SECTION 5. TERMS AND CONDITIONS OF OPTIONS.
Each option granted under this Plan shall be evidenced by an agreement
in writing, which shall be subject to such amendment and modification from time
to time as the Committee shall deem necessary to comply with applicable law or
regulation, and which shall contain, in such form and with such other provisions
as the Committee shall from time to time determine, provisions which comply with
the following terms and conditions:
(a) THE NUMBER OF SHARES. Each option shall state the number
of shares of Class A Stock to which it pertains.
(b) OPTION PRICE. Each option shall state the option price per
share of Class A Stock which shall be equal to the fair market value of
one share of Class A Stock on the date of the granting of the option.
The Committee shall have full authority to determine the fair market
value of a share of Class A Stock. If the Class A Stock is traded in
the over-the-counter market, such fair market value shall be deemed to
be the arithmetical mean between
2
<PAGE>
the asked and the bid prices between the opening of the market and noon
on such date as reported by NASDAQ. If the Class A Stock is traded on
an exchange, such fair market value shall be deemed to be the
arithmetical mean of the high and low prices at which it is quoted or
traded between the opening of the market and noon on such day on the
exchange on which it generally has the greatest trading volume.
(c) MEDIUM AND TIME OF PAYMENT. The option price shall be
payable in United States dollars upon the exercise of the option, and
the exercise of any option and the delivery of the optioned shares
shall be contingent upon receipt by Spiegel of the full purchase price
paid in cash or by check.
(d) TERM AND EXERCISE OF OPTIONS. Each option shall state the
period of time during which the option may be exercised; provided,
however, that, anything contained herein to the contrary
notwithstanding, no option granted hereunder shall be exercisable after
the expiration of ten years after the date of grant of such option.
Subject to the terms of the Plan, any option may be exercised, in whole
or in part, from time to time, as to one or more whole shares of Class
A Stock covered by the option, during its period of exercise.
(e) PERIOD OF EXERCISE OF OPTIONS. Except as otherwise
specifically provided herein:
(1) No option granted hereunder prior to March 1,
1999 shall be exercisable until December 31, 1999 (or the next
preceding business day if December 31, 1999 is a holiday) when
it shall become and remain exercisable for 20% of the shares
covered thereby. Each such option granted prior to March 1,
1999 shall become and remain exercisable for an additional 20%
of the shares covered thereby on December 31, 2000, December
31, 2001, December 31, 2002 and December 31, 2003 (or the next
business day preceding any said December 31st which is a
holiday);
(2) No option granted hereunder on or after March 1,
1999 shall be exercisable until the first anniversary of the
grant thereof, when it shall become and remain exercisable for
20% of the shares covered thereby. Each option granted on or
after March 1, 1999 shall become and remain exercisable for an
additional 20% of the shares covered thereby on the second,
third, fourth and fifth anniversaries of the grant thereof;
(3) An Optionee may exercise a portion of an option
from the date that portion first becomes exercisable until the
option expires or is otherwise terminated;
(4) In the case of any fractional share resulting
from any calculation under the Plan, the shares available for
exercise shall be determined to the nearest lower number of
whole shares.
(f) MAXIMUM VALUE OF STOCK WITH RESPECT TO WHICH INCENTIVE
STOCK OPTIONS ARE EXERCISABLE FOR FIRST TIME IN ANY CALENDAR YEAR.
Anything contained herein to the contrary notwithstanding, to the
extent the aggregate fair market value (determined at the time the
option is granted) of stock with respect to which options are
exercisable for the first time by any eligible employee during any one
calendar year (under this Plan and all other incentive stock option
plans of Spiegel or any parent or subsidiary corporation of Spiegel)
shall exceed
3
<PAGE>
One Hundred Thousand Dollars ($100,000.00), such excess options shall
be treated as options which are not incentive stock options, taking
options into account in the order in which they were granted. In the
case of an option that is to be treated in part as an incentive stock
option and in part as a non-incentive stock option, Spiegel may
designate the shares of Class A Stock that are to be treated as stock
acquired pursuant to exercise of an incentive stock option by issuing a
separate certificate for such shares and identifying the certificate as
incentive stock option shares in the stock transfer records of Spiegel.
(g) TRANSFER OF OPTION. Neither the whole nor any part of any
option shall be transferable by an Optionee or by operation of law
during said Optionee's lifetime and at said Optionee's death an option
or any part thereof shall only be transferable by said Optionee's will
or by the laws of descent and distribution. An option may be exercised
during the lifetime of the Optionee only by the Optionee. Any option,
and any and all rights granted to an Optionee thereunder, to the extent
not theretofore effectively exercised shall automatically terminate and
expire upon any sale, transfer or hypothecation or any attempted sale,
transfer or hypothecation of such option or rights, or upon the
bankruptcy or insolvency of the Optionee.
(h) TERMINATION OF EMPLOYMENT. No option may be exercised
after the termination of the employment of the Optionee with the
Corporation except as hereinafter provided, specifically subject,
however, to the provisions of paragraph (d) of this Section 5:
(1) RETIREMENT. Options granted under the Plan may be
exercised within three (3) months after the Retirement (as
hereinafter defined) of the Optionee and the options shall be
exercisable for all of the shares covered thereby,
notwithstanding the provisions of paragraph (e) of this
Section 5. For purposes of the Plan, "Retirement" shall mean
any termination of employment with the Corporation occurring
after (i) the completion of ten (10) years of service with the
Corporation by the Optionee and (ii) the date on which the
Optionee's age and years of service with the Corporation add
up to seventy (70).
(2) DISABILITY. Options granted under the Plan may be
exercised within three (3) months after the termination of the
employment of the Optionee by reason of the Disability (as
hereinafter defined) of the Optionee and the option shall be
exercisable for all of the shares covered thereby, not
withstanding the provisions of paragraph (e) of this Section
5. For purposes of this Plan, an Optionee shall be deemed have
incurred a "Disability" if a disinterested duly licensed
medical doctor appointed by the Corporation determines that
the Optionee is totally and permanently prevented, as a result
of physical or mental infirmity, injury, or disease, either
occupational or nonoccupational in cause, from holding the job
or position with the Corporation or engaging in the employment
activity, or a comparable job or employment activity with the
Corporation, which the Optionee held or customarily engaged in
prior to the occurrence of the disability (provided, however,
that disability hereunder shall not include any disability
incurred or resulting from the Optionee's having engaged in a
criminal act or enterprise, or any disability consisting of or
resulting from the Optionee's chronic alcoholism, addiction to
narcotics or an intentionally self-inflicted injury).
4
<PAGE>
(3) DEATH.
(i) If an Optionee shall die while employed
by the Corporation or within three (3) months after
termination of employment with the Corporation by
reason of Retirement or Disability, the options
granted under this Plan to such deceased Optionee
shall be exercisable within one (1) year after the
date of the Optionee's death and the options shall be
exercisable for all of the shares covered thereby,
notwithstanding the provisions of paragraph (e) of
this Section 5.
(ii) If an Optionee shall die within three
(3) months after termination of employment with the
Corporation for a reason other than Retirement or
Disability, the options granted under this Plan to
such deceased Optionee shall be exercisable within
one (1) year after the date of the Optionee's death
but the options may not be exercised for more than
the number of Shares, if any, as to which the options
were exercisable by the Optionee immediately prior to
his death.
(iii) The legal representative, if any, of
the deceased Optionee's estate, or the appropriate
legatees or distributees of the deceased Optionee's
estate may exercise the option on behalf of such a
deceased Optionee.
(4) INVOLUNTARY TERMINATION OF EMPLOYMENT. Options
granted under the Plan may be exercised within three (3)
months after the Involuntary Termination of Employment (as
hereinafter defined) of the Optionee with the Corporation and
the options shall be exercisable for all of the shares covered
thereby, notwithstanding the provisions of paragraph (e) of
this Section 5. For purposes of the Plan, "Involuntary
Termination of Employment" shall mean any termination of an
Optionee's employment with the Corporation by reason of the
discharge, firing or other involuntary termination of an
Optionee's employment by action of the Corporation other than
an involuntary termination for cause as described in
subparagraph (6) of this paragraph (h).
(5) VOLUNTARY TERMINATION OF EMPLOYMENT. Options
granted under the Plan may be exercised, if otherwise timely,
within three (3) months after the Voluntary Termination of
Employment (as hereinafter defined) of the Optionee with the
Corporation but the options may not be exercised for more than
the number of shares, if any, as to which the options were
exercisable by the Optionee immediately prior to such
termination of employment as determined under the provisions
of paragraph (e) of this Section 5. For purposes of the Plan
"Voluntary Termination of Employment" shall mean any voluntary
termination of employment with the Corporation by reason of
the Optionee's quitting or otherwise voluntarily leaving the
Corporation's employ other than a voluntary termination of
employment by reason of Retirement or a voluntary termination
of employment constituting a termination for cause as
described in subparagraph (6) of this paragraph (h).
(6) TERMINATION FOR CAUSE. Anything contained
herein to the contrary notwithstanding, if the termination of
an Optionee's employment with the
5
<PAGE>
Corporation is as a result of or caused by the Optionee's
theft or embezzlement from the Corporation, the violation of a
material term or condition of his employment, the disclosure
by the Optionee of confidential information of the
Corporation, conviction of the Optionee of a crime of moral
turpitude, the Optionee's stealing trade secrets or
intellectual property owned by the Corporation, any act by the
Optionee in competition with the Corporation or any other act,
activity or conduct of the Optionee which in the opinion of
the Board Committee of the Board of Directors is adverse to
the best interests of the Corporation, then any options and
any and all rights granted to such Optionee thereunder, to the
extent not yet effectively exercised, shall become null and
void effective as of the date of the occurrence of the event
which results in the Optionee ceasing to be an employee of the
Corporation and any purported exercise of an option by or on
behalf of said Optionee following such date shall be of no
effect.
(i) ACCELERATION. The Committee may, in the case of merger,
consolidation, dissolution or liquidation of Spiegel, accelerate the
expiration date of any option for any or all of the shares covered
thereby (but still giving Optionees a reasonable period of time to
exercise any outstanding options prior to the accelerated expiration
date) and may, in the case of merger, consolidation, dissolution or
liquidation of Spiegel, or in any other case in which it feels it is in
the Corporation's best interest, accelerate the date or dates on which
any option or any part of any option shall be exercisable for any or
all of the shares covered thereby.
(j) RIGHTS AS A STOCKHOLDER. An Optionee shall have no rights
as a stockholder with respect to any shares covered by any of said
Optionee's options until the date that Spiegel receives payment in full
for the purchase of said shares pursuant to the effective exercise of
said option. No adjustment shall be made for dividends or distributions
or other rights for which the record date is prior to the date such
payment is received by Spiegel, except as provided in Section 7 hereof.
(k) DOCUMENTS TO BE DELIVERED TO OPTIONEES. Upon the grant of
an option hereunder to an Optionee, there shall be delivered to the
Optionee a prospectus describing the options granted hereunder and the
Class A Stock covered by the options together with such other
information or documents as the Committee shall deem necessary or
advisable.
(l) COMPLIANCE WITH SECURITIES EXCHANGE ACT. Notwithstanding
anything herein to the contrary, options shall always be granted and
exercised in such a manner as to conform to the provisions of Rule
16b-3, or any replacement rule, adopted pursuant to the provisions of
the Securities Exchange Act of 1934 as the same now exists or may, from
time to time, be amended.
(m) OTHER PROVISIONS. The option agreements authorized under
the Plan shall contain such other provisions, including, without
limitation, restrictions upon the exercise of the option, as the
Committee shall deem advisable and, in any event, all such option
agreements shall contain such limitations and restrictions upon the
exercise of the option as shall be necessary in order that such option
will be an "incentive stock option" as defined in Section 422 of the
Code (except as provided in paragraph (f) of Section 5 hereof) or to
conform to any change in the law.
6
<PAGE>
SECTION 6. NOTICE OF INTENT TO EXERCISE OPTIONS.
An Optionee desiring to exercise an option granted hereunder as to one
or more of the shares covered thereby must, in order to so exercise the option,
notify the Corporation in writing to that effect, specifying the number of
shares to be purchased in a form satisfactory to the Committee.
SECTION 7. STOCK DIVIDEND--RECAPITALIZATION--CONSOLIDATION.
If any stock dividend shall be declared upon the Class A Stock or if
the Class A Stock shall hereafter be subdivided, consolidated, or changed into
other securities of Spiegel, or a successor corporation to Spiegel, then in each
such event, shares of Class A Stock which would be delivered pursuant to
exercise of any options shall for the purpose of adjusting the number and kind
thereof, be treated as though outstanding immediately prior to the occurrence of
such event and the purchase price to be paid therefor shall be appropriately
adjusted to give effect thereto.
The grant of an option pursuant to the Plan shall not affect in any way
the right or power of Spiegel to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or any part of
its business or assets.
SECTION 8. EXPIRATION AND TERMINATION OF PLAN.
Options may be granted pursuant to this Plan only within ten (10) years
following the earlier to occur of the date on which the Plan is originally
adopted by the Board of Directors and the date on which the Plan is originally
approved by holders of the Class B Voting Common Stock of Spiegel.
Options may be granted under the Plan at any time until the Plan is
terminated by the Board of Directors or until such earlier date when termination
of the Plan shall be required by applicable law. If not sooner terminated, the
Plan shall terminate automatically on November 17, 2008, which is ten years from
the date on which the Plan was originally approved by the Board of Directors.
SECTION 9. AMENDMENT OF THE PLAN.
The Board of Directors may, insofar as permitted by law, from time to
time, with respect to any shares of Class A Stock at the time not subject to
outstanding options, suspend or discontinue the Plan or revise or amend it in
any respect whatsoever except that, without approval of the holders of a
majority of the Class B Voting Common Stock of Spiegel, no such revision or
amendment shall change the number of shares of Class A Stock subject to the Plan
(except as may occur as a result of an occurrence described in Section 7),
change the designation of the class of employees eligible to receive options,
remove the administration of the Plan from the Committee, or render any member
of the Committee eligible to receive an option under the Plan while serving
thereon. Furthermore, the Plan may not, without the approval of the holders of a
majority of the Class B Voting Common Stock of Spiegel, be amended in any manner
that will cause options issued under it to fail to meet the requirements of
"incentive stock options" as defined in Section 422 of the Code (except as
7
<PAGE>
provided in paragraph (f) of Section 5 hereof) or which would result in a
failure to comply with Section 16(b)(3) of the Securities Exchange Act of 1934
or similar statute or rules or regulations adopted thereunder.
SECTION 10. GRANTING OF OPTIONS.
The granting of any option pursuant to this Plan shall be entirely in
the discretion of the Committee and nothing herein contained shall be construed
to give any employee any right to participate under this Plan or to receive any
option under it. The granting of an option shall impose no duty upon the
Optionee to exercise such option.
Neither the adoption and maintenance of the Plan nor the granting of an
option pursuant to this Plan shall be deemed to constitute a contract of
employment between the Corporation and any employee or to be a condition of the
employment of any person. Nothing herein contained shall be deemed to (a) give
to any employee the right to be retained in the employ of the Corporation; (b)
interfere with the right of the Corporation to discharge or retire any employee
at any time; (c) be deemed to give to the Corporation the right to require an
employee to remain in its employ or (d) interfere with the employee's right to
terminate his employment at any time.
SECTION 11. GOVERNMENT REGULATIONS.
This Plan and the granting and exercise of any option hereunder and the
obligations of Spiegel to sell and deliver shares under any such option shall be
subject to all applicable laws, rules and regulations, and to such approvals by
any governmental agencies as may be required.
SECTION 12. PROCEEDS FROM SALE OF STOCK.
Proceeds of the purchase of optioned shares by any Optionee shall be
for the general business purposes of Spiegel.
SECTION 13. REPORTING REQUIREMENTS.
The Committee shall furnish each Optionee hereunder with such
information relating to the exercise of any option granted hereunder to said
Optionee as is required under the Code and applicable State and Federal Security
laws.
8
<PAGE>
SECTION 14. APPROVAL OF STOCKHOLDERS.
No option granted hereunder shall be exercisable until the Plan is
approved by the holders of a majority of the outstanding shares of the Class B
Voting Common Stock of Spiegel, which approval must occur within the period
beginning twelve months before and ending twelve months after the date the Plan
is adopted by the Board of Directors. If the Plan is not so approved by the
holders of Spiegel's Class B Voting Common Stock, any options granted hereunder
shall be void and of no effect.
SECTION 15. INTERPRETATION.
The terms of this Plan are subject to all present and future
regulations and rulings of the Secretary of the Treasury or his delegate
relating to the qualification of Incentive Stock Options under Section 422 of
the Code. If any provision of the Plan conflicts with any such regulation or
ruling, that provision of the Plan shall be void and of no effect.
SPIEGEL, INC.
By: /s/ Michael R. Moran
--------------------------------
9
<PAGE>
Exhibt 28(b)
SPIEGEL, INC.
CLASS A NON-VOTING COMMON STOCK
OPTION AGREEMENT NO. __
This Option Agreement No. __ entered into this _______ day of
____________________, 19__ , by and between Spiegel, Inc., a Delaware
corporation ("Spiegel"), and _____________________________ ("Optionee").
WHEREAS, Spiegel desires to grant the Optionee an Option to purchase
shares of its $1.00 par value per share Class A Non-Voting Common Stock
("Class A Stock") subject to the terms and conditions hereinafter set forth,
pursuant to the provisions of the Spiegel Group Incentive Stock Option Plan
(the "Plan") which was adopted by Spiegel on November 17, 1998 and which was
subsequently approved by the Class B Voting Common Stockholders of Spiegel.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto
agree as follows:
1. GRANT OF OPTION.
Spiegel, pursuant to the Plan, hereby grants to the
Optionee the option ("Option") to purchase ___________ shares
of Class A Stock, subject to the terms and conditions
hereinafter set forth. The date of the grant of the Option is
the date of this Stock Option Agreement.
2. PURCHASE PRICE.
The purchase price of the Class A Stock covered by
the Option shall be ____________________________________
($________________) per share.
<PAGE>
3. PERIOD OF EXERCISE AND TERMS AND CONDITIONS OF OPTION.
This Option may be exercised between the date hereof
and the date ten (10) years after the date hereof from time to
time, in whole or in part as to one or more whole shares of
Class A Stock covered by the Option, subject to the terms and
conditions set forth below. Anything contained herein to the
contrary notwithstanding, the Option granted hereunder shall
not be exercisable in whole or in part after the expiration of
ten (10) years after the date of grant thereof. The Option
granted hereby shall be subject to the following terms and
conditions:
(a) PERIOD OF EXERCISE OF OPTIONS.
Except as otherwise specifically provided herein:
(1) No portion of the Option granted
hereby shall be exercisable until December
31, 1999 (or the next preceding business day
if December 31, 1999 is a holiday) when the
Option shall become and remain exercisable
for 20% of the shares covered thereby. The
Option granted hereby shall become and
remain exercisable for an additional 20% of
the shares covered thereby on December 31,
2000, December 31, 2001, December 31, 2002
and December 31, 2003 (or the next business
day preceding any said December 31st which
is a holiday);
(2) An Optionee may exercise a
portion of the Option from the date that
portion first becomes exercisable until the
Option expires or is otherwise terminated;
2
<PAGE>
(3) In the case of any fractional
share resulting from any calculation under
the Plan, the shares available for exercise
shall be determined to the nearest lower
number of whole shares.
(b) MAXIMUM VALUE OF STOCK WITH RESPECT TO WHICH
OPTION IS EXERCISABLE FOR FIRST TIME IN ANY
CALENDAR YEAR.
Anything contained herein to the contrary
notwithstanding, to the extent the aggregate fair
market value (determined at the time the option is
granted) of stock with respect to which options are
exercisable for the first time by Optionee during any
one calendar year (under this Plan and all other
incentive stock option plans of Spiegel or any parent
or subsidiary corporation of Spiegel) shall exceed
One Hundred Thousand Dollars ($100,000.00), such
excess options shall be treated as options which are
not incentive stock options as determined under the
Plan.
(c) TRANSFER OF OPTION.
Neither the whole nor any part of this
Option shall be transferable by the Optionee or by
operation of law during the Optionee's lifetime and
at the Optionee's death this Option or any part
thereof shall only be transferable by the Optionee's
will or by the laws of descent and distribution. This
Option may be exercised during the lifetime of the
Optionee only by the Optionee. This Option, and any
and all rights granted to the Optionee hereby, to the
extent not theretofore effectively exercised shall
automatically terminate and expire upon any sale,
transfer or hypothecation or any attempted sale,
transfer or hypothecation of the Option or such
rights, or upon the bankruptcy or insolvency of the
Optionee.
3
<PAGE>
(d) TERMINATION OF EMPLOYMENT.
This Option may not be exercised after the
termination of the employment of the Optionee with
Spiegel and its "subsidiary corporations" as that
term is defined in the Plan (collectively, the
"Corporation") except as hereinafter provided,
specifically subject, however, to the provisions of
the second sentence of the first paragraph of this
Section 3:
(1) RETIREMENT.
This Option may be exercised within three (3) months
after the Retirement (as hereinafter defined) of the Optionee
and the Option shall be exercisable for all of the shares
covered thereby, notwithstanding the provisions of paragraph
(a)(1) of this Section 3. For purposes of this Option
Agreement, "Retirement" shall mean any termination of
employment with the Corporation occurring after (i) the
completion of ten (10) years of service with the Corporation,
and (ii) the date on which the Optionee's age and years of
service with the Corporation add up to seventy (70).
(2) DISABILITY.
This Option may be exercised within three (3) months
after the termination of the employment of the Optionee by
reason of the Disability (as hereinafter defined) of the
Optionee and the Option shall be exercisable for all of the
shares covered thereby, notwithstanding the provisions of
paragraph (a)(1) of this Section 3. For purposes of this
Option Agreement, the Optionee shall be deemed to have
incurred a "Disability" if a disinterested duly licensed
medical doctor appointed by the Corporation determines that
the Optionee is totally and permanently prevented, as a
result of physical or mental infirmity, injury, or disease,
either occupational or nonoccupational in cause, from
holding the job or position with the Corporation or
4
<PAGE>
engaging in the employment activity, or a comparable job or
employment activity with the Corporation, which the Optionee
held or customarily engaged in prior to the occurrence of the
disability (provided, however, that disability hereunder shall
not include any disability incurred or resulting from the
Optionee's having engaged in a criminal act or enterprise, or
any disability consisting of or resulting from the Optionee's
chronic alcoholism, addiction to narcotics or an intentionally
self-inflicted injury).
(3) DEATH.
(i) If the Optionee shall die while employed
by the Corporation or within three (3) months after
termination of employment with the Corporation by
reason of Retirement or Disability, the Option
granted hereby to such deceased Optionee shall be
exercisable within one (1) year after the date of the
Optionee's death and the Option shall be exercisable
for all of the shares covered hereby, notwithstanding
the provisions of paragraph (a)(1) of this Section 3.
(ii) If the Optionee shall die within three
(3) months after termination of employment with the
Corporation for a reason other than Retirement or
Disability, the Option granted hereby to such
deceased Optionee shall be exercisable within one (1)
year after the date of the Optionee's death but the
Option may not be exercised for more than the number
of shares, if any, as to which the Option was
exercisable by the Optionee immediately prior to his
death.
5
<PAGE>
(iii) The legal representative, if any, of
the deceased Optionee's estate, or the appropriate
legatees or distributees of the deceased Optionee's
estate may exercise this Option on behalf of the
Optionee.
(4) INVOLUNTARY TERMINATION OF EMPLOYMENT.
This Option may be exercised within three (3) months
after the Involuntary Termination of Employment (as
hereinafter defined) of the Optionee with the Corporation and
the Option shall be exercisable for all of the shares covered
thereby, notwithstanding the provisions of paragraph (a)(1) of
this Section 3. For purposes of this Option Agreement,
"Involuntary Termination of Employment" shall mean any
termination of the Optionee's employment with the Corporation
by reason of the discharge, firing or other involuntary
termination of the Optionee's employment by action of the
Corporation other than an involuntary termination for cause as
described in subparagraph (6) of this paragraph (d).
(5) VOLUNTARY TERMINATION OF EMPLOYMENT.
This Option may be exercised, if otherwise timely,
within three (3) months after the Voluntary Termination of
Employment (as hereinafter defined) of the Optionee with the
Corporation but the Option may not be exercised for more than
the number of shares, if any, as to which the Option was
exercisable by the Optionee immediately prior to such
termination of employment as determined under the provisions
of paragraph (a)(1) of this Section 3. For purposes of this
Option Agreement, "Voluntary Termination of Employment" shall
mean any voluntary termination of employment with the
Corporation by reason of the Optionee's quitting or otherwise
voluntarily leaving the Corporation's employ other than a
voluntary termination of employment by reason of Retirement or
a voluntary termination of
6
<PAGE>
employment constituting a termination for cause as described
in subparagraph (6) of this paragraph (d).
(6) TERMINATION FOR CAUSE.
Anything contained herein to the contrary
notwithstanding, if the termination of the Optionee's
employment with the Corporation is as a result of or caused by
the Optionee's theft or embezzlement from the Corporation, the
violation of a material term or condition of his employment,
the disclosure by the Optionee of confidential information of
the Corporation, conviction of the Optionee of a crime of
moral turpitude, the Optionee's stealing trade secrets or
intellectual property owned by the Corporation, any act by the
Optionee in competition with the Corporation or any other act,
activity or conduct of the Optionee which in the opinion of
the Board Committee of the Board of Directors of Spiegel is
adverse to the best interests of the Corporation, then this
Option and any and all rights granted to such Optionee
hereunder, to the extent not yet effectively exercised,
shall become null and void effective as of the date
of the occurrence of the event which results in the Optionee
ceasing to be an employee of the Corporation and any purported
exercise of the Option by or on behalf of the Optionee
following such date shall be of no effect.
(e) ACCELERATION.
The Stock Option Committee (the
"Committee"), which administers the Plan, may, in the
case of merger, consolidation, dissolution or
liquidation of Spiegel, accelerate the expiration
date of this Option for any or all of the shares
covered thereby (but still giving the Optionee a
reasonable period of time to exercise the Option with
respect to any portion thereof outstanding
7
<PAGE>
prior to the accelerated expiration date) and may, in
the case of merger, consolidation, dissolution or
liquidation of Spiegel, or in any other case in which
it feels it is in the Corporation's best interest,
accelerate the date or dates on which this Option or
any part of this Option shall be exercisable for any
or all of the shares covered thereby.
(f) RIGHTS AS A STOCKHOLDER.
The Optionee shall have no rights as a
stockholder with respect to any shares covered by
this Option until the date that Spiegel receives
payment in full for the purchase of said shares
pursuant to the effective exercise of this Option. No
adjustment shall be made for dividends or
distributions or other rights for which the record
date is prior to the date such payment is received by
Spiegel, except as provided in Section 7 of the Plan.
Spiegel shall not be required to issue or deliver any
certificate for shares of its Class A Stock purchased
upon the exercise of all or any part of this Option
before (1) the admission of such shares to listing on
any stock exchange on which such stock may then be
listed, or, if applicable, approved for inclusion on
the National Market System of the NASD and (2)
completion of any registration or other qualification
of such shares under any state or federal law or
ruling or regulation of any governmental regulatory
body that Spiegel shall, in its sole discretion,
determine is necessary or advisable.
(g) COMPLIANCE WITH SECURITIES EXCHANGE ACT.
Notwithstanding anything herein to the
contrary, this Option shall always be exercised in
such a manner as to conform to the provisions of Rule
16b-3, or any replacement rule, adopted pursuant to
the provisions of the
8
<PAGE>
Securities Exchange Act of 1934 as the same now
exists or may, from time to time, be amended.
(h) OPTION SUBJECT TO TERMS OF PLAN.
The exercise of this Option shall be
additionally conditioned and limited as provided in
the Plan.
4. METHOD OF EXERCISE.
Subject to the terms and conditions of this Stock
Option Agreement and the Plan, the Optionee, in order to
exercise the Option, must notify the Committee in writing in a
form acceptable to the Committee to that effect at Spiegel,
Inc., Stock Option Committee, c/o Michael R. Moran, 3500 Lacey
Road, Downers Grove, Illinois 60515-5432. Such written notice
must state the election to exercise the Option granted under
this Stock Option Agreement, and specify the number of shares
of Class A Stock to be purchased. Such notice must be
accompanied by cash, or a check payable to Spiegel, Inc. in
the amount of the full purchase price in United States Dollars
for the shares of Class A Stock to be purchased. The Option
shall be considered as having been effectively exercised only
upon the receipt by the Committee of the written notice of the
exercise of the Option and the payment of the full purchase
price for the shares of Class A Stock to be purchased in
accordance with the preceding provisions of this Section 4.
5. GENERAL PROVISIONS.
(a) Spiegel shall make available such number
of shares of Class A Stock as will be sufficient to
satisfy the requirements of this Option Agreement,
shall pay any original issue and transfer taxes with
respect to the issue and transfer of shares pursuant
hereto and all other fees and expenses
9
<PAGE>
necessarily incurred by Spiegel in connection
herewith, and will from time to time use its best
efforts to comply with all laws and regulations
which, in the opinion of independent counsel for
Spiegel shall be applicable thereto.
(b) This Option Agreement shall be subject
to such amendment and modification from time to time
as the Committee shall deem necessary to comply with
applicable law or regulation.
(c) The Optionee, in executing this Stock
Option Agreement, acknowledges that he has received
from the Committee a copy of the provisions of the
Plan and the prospectus describing the Option granted
hereby and the Class A Stock covered by the Option.
IN WITNESS THEREOF, Spiegel, Inc. and the Optionee have cause this
Option Agreement as first numbered above to be duly executed, all on the day and
year first above written.
SPIEGEL, INC.
By:
--------------------------------------
Chairman of the Spiegel, Inc.
Stock Option Committee
--------------------------------------
Optionee
10
