As filed with the Securities and Exchange Commission on December __, 1997
Registration No. _____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SEARS, ROEBUCK AND CO.
(Exact name of Registrant as specified in its charter)
New York
(State or other jurisdiction of incorporation or organization)
36-1750680
(I.R.S. employer identification no.)
3333 Beverly Road
Hoffman Estates, Illinois 60179
847/286-2500
(Address of principal executive offices)
Sears, Roebuck and Co. Deferred Compensation Plan
(Full title of the Plan)
Michael D. Levin, Esq.
Senior Vice President, General Counsel and Secretary
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, IL 60179
(847) 286-2500
(Name and address, including zip code, and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum
Title of securities Amount to be Proposed maximum aggregate offering Amount of
to be registered registered offering price per obligation price (2) registration fee
<S> <C> <C> <C> <C>
Deferred Com-
pensation Ob-
ligations (1) $25,000,000 100% $25,000,000 $7,576.00
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of
Sears, Roebuck and Co. to pay deferred compensation in the future in
accordance with the terms of the Sears, Roebuck and Co. Deferred Compensation
Plan.
(2) Estimated solely for the purpose of determining the registration fee.
Pursuant to General Instruction E of Form S-8, the contents of Registration
Statement No. 333-18591 (filed December 23, 1996) are incorporated by
reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of
Form S-8 and the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
The annual financial statements of Sears, Roebuck and Co. ("Sears")
and consolidated subsidiaries incorporated by reference in this Prospectus
have been audited to the extent and for the periods indicated in the reports
of Deloitte & Touche LLP, independent certified public accountants, and have
been incorporated herein in reliance upon the reports of such firm and upon
the authority of such firm as experts in accounting and auditing. The
validity of the obligations issuable under the Plan has been passed upon for
Sears by Nancy K. Bellis, Esq., Assistant General Counsel, Corporate Law
Department, of Sears. At November 30, 1997, Ms. Bellis owned 200 Sears
common shares credited to her account in The Savings and Profit Sharing Fund
of Sears Employees and had options granted under Sears employee stock plans
to purchase 1,079 Sears common shares.
With respect to the unaudited interim financial information which is
incorporated herein by reference, Deloitte & Touche LLP have applied limited
procedures in accordance with professional standards for a review of such
information. However, as stated in their reports included in the Quarterly
Reports on Form 10-Q for Sears and incorporated by reference herein, they did
not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted in light of the limited nature of the review
procedures applied. Deloitte & Touche LLP are not subject to the liability
provisions of Section 11 of the Act for their reports on the unaudited
interim financial information because those reports are not "reports" or a
"part" of the registration statement prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Sears with the Securities and
Exchange Commission (the "Commission"), are incorporated in and made a part
of this Prospectus by reference, except to the extent that any statement or
information therein is modified, superseded or replaced by a statement or
information contained in any other subsequently filed document incorporated
herein by reference: (1) Sears annual report on Form 10-K for the fiscal year
ended December 28, 1996, (2) Sears Quarterly Reports on Form 10-Q for the
quarterly periods ended March 29, June 28 and September 27, 1997, (3) Sears
Current Reports on Form 8-K dated January 7, January 23, April 10, June 3,
June 5, June 11 and October 16, 1997, filed by Sears with the Commission
pursuant to Section 13 of the Securities Exchange Act of 1934 (the "Exchange
Act"), and (4) all documents (other than those portions of such documents
described in paragraphs (i), (k) and (l) of Item 402 of Regulation S-K
promulgated by the Commission) filed by Sears with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment indicating that all securities offered hereunder have been sold or
deregistering all securities then remaining unsold.
Item 4. Description of Securities.
The following description of the Deferred Compensation Obligations
of Sears offered hereby (the "Obligations") is qualified by reference to the
text of the Sears, Roebuck and Co. Deferred Compensation Plan (the "Plan").
Capitalized terms used in this Registration Statement and not otherwise
defined herein are defined in the Plan.
Under the Plan, Sears will provide eligible employees of Sears and
its affiliates with the opportunity to defer a specified percentage of their
future cash compensation. The Obligations will be unsecured general
obligations of Sears to pay the compensation deferred in accordance with the
terms of the Plan and will rank equally with other unsecured and
unsubordinated indebtedness of Sears outstanding from time to time and
payable from the general assets of Sears. Because Sears has subsidiary
companies, the right of Sears, and hence the right of creditors of Sears
(including participants in the Plan), to participate in a distribution of the
assets of a subsidiary upon its liquidation or reorganization or otherwise,
necessarily is subject to the prior claims of creditors of the subsidiary,
except to the extent that claims of Sears itself as a creditor may be
recognized.
The amount of compensation to be deferred by each participant (the
"Deferral Account") will be determined in accordance with the Plan based on
elections by the participant. Each Deferral Account generally will be
payable upon termination of employment or on a date selected by the
participant in accordance with the terms of the Plan. The Deferral Account
will be indexed to one or more investment indices chosen by each participant
from a list of such indices. Each Deferral Account will be adjusted to
reflect the investment experience of the selected investment index or
indices, including any appreciation or depreciation. The Obligations will be
denominated and payable in United States dollars. The Plan is unfunded, and
amounts credited to Deferral Accounts are part of the general funds of Sears,
are subject to all the risks of Sears business, and may be deposited,
invested or expended in any manner whatsoever by Sears.
Benefits under the Plan are not subject to assignment, transfer,
pledge or other encumbrance or attachment other than by operation of law. A
Participant may designate persons or entities to receive any balance in his
or her Deferral Account and interest thereon, payable in the event of death.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by the participant, although
the Obligations could be redeemed in case of termination of the Plan. Sears
reserves the right to amend or terminate the Plan at any time, except that no
such amendment or termination shall reduce the amount of compensation
deferred or any interest thereon up to and including the end of the month in
which such action is taken. Generally, the Obligations will be paid in cash
following the participant's separation from service with Sears or its
affiliates except in case of hardship or an optional in-service withdrawal if
elected by the participant.
The Obligations are not convertible into another security of Sears.
The Obligations will not have the benefit of a negative pledge or any other
affirmative or negative covenant on the part of Sears. No trustee has been
appointed having the authority to take action with respect to the
Obligations, and each participant will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to any request for consents, waivers, or amendments pertaining to
the Obligations, enforcing covenants, and taking action upon a default.
Item 5. Interests of Named Experts and Counsel.
The validity of the Obligations issuable under the Plan has been
passed upon for Sears by Nancy K. Bellis, Esq., Assistant General Counsel,
Law Department, of Sears.
Item 6. Indemnification of Directors and Officers.
The New York Business Corporation Law ("BCL") and the By-Laws of
Sears generally provide for the indemnification of any director or officer of
Sears who is or is threatened to be made a party to any action because such
person is or was a director or officer of Sears, or because such person
served another enterprise (including the Plan) at the request of Sears,
against judgments, fines, amounts paid in settlement and expenses (including
attorneys' fees) in connection with such action, as limited by the BCL and
the By-Laws in certain circumstances depending upon the type of conduct
involved and the nature of the action.
The BCL authorizes Sears to purchase indemnification insurance.
Sears has in effect insurance policies with total coverage of $150,000,000
(subject to a deductible) which insure directors and officers of Sears and of
certain other entities against certain claims which are not indemnifiable by
Sears. These insurance policies also provide for the payment by the insurer
of amounts, excluding certain fines and penalties which are legally
uninsurable and certain other matters, which Sears, certain other entities or
their officers, directors or employees become obligated to pay by reason of
any claim based upon an act or omission in the management or administration
of certain employee benefit plans (including the Plan) sponsored by Sears and
certain subsidiaries of Sears.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits to this Registration Statement are listed in the Exhibit
Index on page E-1, which Exhibit Index is hereby incorporated herein by
reference.
Item 9. Undertakings.
A.The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made 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 paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in the periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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 Hoffman Estates, State of Illinois, on this 24th day of
December, 1997.
SEARS, ROEBUCK AND CO.
By: /s/ MICHAEL D. LEVIN*
Michael D. Levin
Senior Vice President, General Counsel and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registrant
Statement has been signed by the following persons in the capacities and on
the date indicated.
Signature Title
/s/ARTHUR C. MARTINEZ* Director, Chairman of the
Arthur C. Martinez Board of Directors and Chief
Executive Officer
(Principal Executive Officer)
/s/GARY L. CRITTENDEN* Executive Vice President and
Gary L. Crittenden Chief Financial Officer
(Principal Financial Officer)
/s/JAMES A. BLANDA* Vice President and Controller
James A. Blanda (Principal Accounting Officer)
/s/HALL ADAMS, JR.* Director
Hall Adams, Jr.
/s/BRENDA C. BARNES* Director
Brenda C. Barnes
/s/WARREN L. BATTS* Director
Warren L. Batts
/s/ ALSTON D. CORRELL, JR.* Director
Alston D. Correll, Jr.
/s/ MICHAEL A. MILES* Director
Michael A. Miles
/s/RICHARD C. NOTEBAERT* Director
Richard C. Notebaert
/s/HUGH B. PRICE* Director
Hugh B. Price
PATRICK G. RYAN* Director
Patrick G. Ryan
/s/ CLARENCE B. ROGERS, JR.* Director
Clarence B. Rogers, Jr.
/s/ DONALD H. RUMSFELD* Director
Donald H. Rumsfeld
/s/ DOROTHY A. TERRELL* Director
Dorothy A. Terrell
*By: /s/ MICHAEL D. LEVIN (Attorney-in-Fact)
Michael D. Levin
Date: December 24, 1997
EXHIBIT INDEX
Exhibit No. Description of Document
4.1 Sears, Roebuck and Co. Deferred
Compensation Plan, as amended and restated
on February 4, 1997.
5.1 Opinion of Nancy K. Bellis, Esq.
5.2 Opinion of Mayer, Brown & Platt.
15 Acknowledgment of Deloitte & Touche LLP
concerning unaudited interim financial
information.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Nancy K. Bellis, Esq. (included
in the opinion filed as Exhibit No. 5.1).
23.3 Consent of Mayer, Brown & Platt (included in
the opinion filed as Exhibit No. 5.2).
24.1 Power of Attorney of certain directors and
officers of the Registrant.
24.2 Power of Attorney of principal financial
officer of the Registrant.
24.3 Power of Attorney of a director of the
Registrant.
EXHIBIT 4.1
SEARS, ROEBUCK AND CO.
DEFERRED COMPENSATION PLAN
AS AMENDED AND RESTATED TO
FEBRUARY 4, 1997
SEARS, ROEBUCK AND CO.
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
ARTICLE I
DESIGNATION OF PLAN AND DEFINITIONS
1.1 Title 1
1.2 Definitions 1
ARTICLE II
PARTICIPATION
2.1 Eligibility 3
2.2 Participating Employers 3
2.3 Notice of Eligibility 3
2.4 Participation Election 3
2.5 Participation Election Form 4
ARTICLE III
DEFERRALS
3.1 Amount of Deferral 5
3.2 Effective Date of Deferral 5
3.3. Use of Amounts Deferred 5
ARTICLE IV
DEFERRED COMPENSATION ACCOUNTS AND VESTING
4.1 Establishment of Account 6
4.2 Contributions to Account 6
4.3 Accrual of Interest on Compensation Deferred 6
4.4 Vesting 10
4.5 Transfers 10
i
ARTICLE V
PAYMENTS
5.1 Events Causing Accounts to Become
Distributable 11
5.2 Notice of Account Payment and Commencement
of Distribution 11
5.3 Form of Payment 12
5.4 Distribution Election 12
5.5 Distribution Election Form 13
ARTICLE VI
ADMINISTRATION
6.1 General Administration; Rights and Duties 14
ARTICLE VII
PLAN AMENDMENTS AND TERMINATION
7.1 Amendments 15
7.2 Termination of Plan 15
ARTICLE VIII
MISCELLANEOUS
8.1 Notification to Committee 16
8.2 Participants' Employment 16
8.3 Other Plans 16
8.4 Beneficiaries and Contingent Beneficiaries 16
8.5 Taxes 17
8.6 Benefits Not Assignable; Obligations
Binding Upon Successors 17
8.7 Illinois Law Governs; Saving Clause 17
8.8 Headings Not Part of Plan 17
8.9 Mid-Year Participants 18
ii
ARTICLE I
DESIGNATION OF PLAN AND DEFINITIONS
1.1 Title
This Plan shall be known as the "Sears, Roebuck and
Co. Deferred Compensation Plan" and shall become effective for Compensation
received on and after January 1, 1987.
1.2 Definitions
The following definitions will apply:
(a) "Accounts" shall mean Deferred Compensation
Accounts.
(b) "Beneficiary" or "Contingent Beneficiary"
(collectively, "Beneficiary" or "Beneficiaries"), shall mean the person or
persons last designated in writing by the Participant to the Committee, in
accordance with Section 8.5 of this Plan.
(c) "Board" shall mean the Board of Directors of the
Company.
(d) "Compensation" shall mean salary, bonuses, LTIP
awards and any other compensation payable in cash or common shares with
respect to services rendered in any one Plan Year, by a Participating
Employer to an Eligible Employee.
(e) "Committee" shall mean the Committee appointed by
the Board of Directors pursuant to Article VI of this Plan.
(f) "Company" shall mean Sears, Roebuck and Co. and all
consolidated subsidiaries thereof.
(g) "Deferred Compensation Account" shall mean the
balance of all Compensation deferred by a Participant, plus all interest
accrued pursuant to Article IV of the Plan.
(h) "Eligible Employee" shall mean any Employee who is
eligible to be selected as a Participant under Article II of this Plan.
(i) "Employee" shall mean any regular, full-time
employee of the Company.
(j) "Hardship" shall mean severe financial hardship to
the Participant resulting from a sudden and unexpected illness or accident of
the Participant or of a dependent (as defined in Section 152(a) of the
Internal Revenue Code of 1986, as amended) of the Participant, loss of the
Participant's property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control
of the Participant. The circumstances that will constitute an unforeseeable
emergency will depend upon the facts of each case, but, in any case, payment
may not be made to the extent that such hardship is or may be relieved--
1) through reimbursement or compensation by insurance
or otherwise,
2) by liquidation of the Participant's assets, to the
extent the liquidation of such assets would not itself cause severe financial
hardship, or
3) by cessation of deferrals under the Plan.
Examples of what are not considered to be unforeseeable emergencies
include the need to send a Participant's child to college or the desire to
purchase a home.
(k) "LTIP" shall mean the Sears, Roebuck and Co. Long-
Term Incentive Compensation Plan or any similar plan of the Company providing
Compensation intended to serve as incentive for performance to occur over a
period longer than one fiscal year.
(l) "Participant" shall mean an Eligible Employee
participating in the Plan in accordance with Article II hereof.
(m) "Participating Employer" shall mean the Company, or
any Subsidiary which adopts this Plan in accordance with Section 2.2 hereof.
(n) "Plan" shall mean this Sears, Roebuck and Co.
Deferred Compensation Plan as set forth herein, and as amended from time to
time in accordance with Article VII hereof.
(o) "Plan Year" shall mean the calendar year.
(p) "Section 16(a) Participants" shall mean Participants
who are required to file reports under Section 16(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(q) "Separation from Service" shall mean the termination
of a Participant's employment with the Company for any reason whatsoever,
including retirement, resignation, dismissal and death.
(r) "Subsidiary" shall mean any subsidiary of the
Company.
(s) "Transfer" shall mean a change in a Participant's
employment from a Participating Employer to a Subsidiary which is not a
Participating Employer.
ARTICLE II
PARTICIPATION
2.1 Eligibility
(a) All Employees who are designated by the Board from
time to time as "executive officers" for the purposes of Section 16 of the
Exchange Act, and the rules and regulations promulgated thereunder, shall be
Eligible Employees and may be Participants for the next Plan Year.
(b) All other key officers and Employees as the
Committee may approve who expect to have Compensation and such other items of
income as the Committee shall determine, of over the amount fixed from time
to time by the Secretary of the Treasury pursuant to Section 401(a)(17) of
the Internal Revenue Code of 1986, as amended, for the next Plan Year, shall
be Eligible Employees and may be Participants for the next Plan Year. The
Committee may change the requirements in this Section 2.1 for eligibility,
provided, however, that the Committee shall not decrease said income
eligibility requirement.
2.2 Participating Employers
Any Subsidiary, with the approval of the Company, may adopt
this Plan for its Eligible Employees.
2.3 Notice of Eligibility
The Committee or its appointed representative shall notify
each Eligible Employee no later than 30 days prior to the first business day
of any Plan Year or as soon thereafter as practicable, that he/she is
entitled to become a Participant in the Plan for such Plan Year.
2.4 Participation Election
Each Eligible Employee shall give written notice to the
Committee or its representative, of his/her election to become a Participant
in the Plan for any Plan Year, no later than the last business day of the
preceding Plan Year. Such notice shall specify the deferral percentages or
amount of Compensation expected to be earned and payable with respect to the
upcoming Plan Year to be deferred when such amounts would otherwise be
payable, as set forth in Section 3.1 of the Plan. If an Eligible Employee
fails to give such written notice of election, such failure will be deemed an
election not to become a Participant for such Plan Year. No change may be
made in deferral election for the plan year for which a deferral election
previously
has been made. However, a participant may at any time suspend participation
in the Plan for the remainder of a plan year as to deferrals of the salary
component of compensation, and deferrals of said salary under the Plan for
that plan year will discontinue, starting with salary earned in the month
following the receipt by the Committee or its appointed representative of
written notice of such suspension.
2.5 Participation Election Form
The Committee shall approve and distribute to all Eligible Employees
a form which shall be used by Eligible Employees to notify the Committee of
their election to participate in the Plan pursuant to Section 2.4 hereof.
Such form shall clearly delineate the deferral alternatives provided by the
Plan, pursuant to Section 3.1 hereof.
ARTICLE III
DEFERRALS
3.1 Amount of Deferral
(a) Pursuant to Section 2.4 hereof, a Section 16(a)
Participant may elect to defer in whole number percentages or whole dollar
terms, or a combination thereof, up to all of the aggregate of that portion
of such person's base salary, annual bonus, LTIP awards and any other
compensation payable for services rendered during the Plan Year and such
other portion of such person's Compensation as may be designated by the
Board, in excess of (i) the amount fixed from time to time by the Secretary
of the Treasury pursuant to Section 401(a)(17) of the Internal Revenue Code
of 1986, as amended, or (ii) any other higher limitation expressly imposed by
the Board.
(b) Any other Participant may, pursuant to Section 2.4
hereof, elect to defer in whole number percentages or whole dollar terms,
or a combination thereof, up to all of the aggregate of that portion of a
Participant's base salary, annual bonus, LTIP awards and any other
compensation payable for services rendered during the Plan Year and such
other portion of such Participant's Compensation as may be designated by the
Committee, in excess of (i) the amount fixed from time to time by the
Secretary of the Treasury pursuant to Section 401(a)(17) of the Internal
Revenue Code of 1986, as amended, or (ii) any other higher limitation
expressly imposed by the Committee.
3.2 Effective Date of Deferral
Compensation deferred shall be credited to a Participant's
Account as set forth in Section 4.2.
3.3. Use of Amounts Deferred
Amounts credited to Deferred Compensation Accounts hereunder
shall be a part of the general funds of the Company, shall be subject to all
the risks of the Company's business, and may be deposited, invested or
expended in any manner whatsoever by the Company.
ARTICLE IV
DEFERRED COMPENSATION ACCOUNTS AND VESTING
4.1 Establishment of Account
The Committee shall establish, by bookkeeping entry on the
books of the Company, a Deferred Compensation Account for each Participant.
Such Account shall be established as of the first day of the Plan Year for
which the Eligible Employee first becomes a Participant.
4.2 Contributions to Account
The Committee shall cause deferred Compensation to be
credited by bookkeeping entry to each Participant's Account as of the date
when such Compensation otherwise would have been payable to the Participant.
4.3 Accrual of Interest on Compensation Deferred
To each Subaccount shall be credited, as applicable,
Compensation deferred, Dividend Equivalents on Common Shares, and interest.
Payments to the Participant or amounts transferred to another Subaccount
under the Plan shall be debited to the appropriate Subaccount.
(a) Subaccount #1 - Sears Roebuck Acceptance Corp.
Commercial Paper Rate. Compensation deferred into Subaccount #1 shall be
credited to the Subaccount on the same date when it would otherwise be
payable to the Participant. Compensation deferred shall earn interest from
the date of credit to the date of payment. At the end of each calendar
month, interest at a rate equal to the monthly average per annum cost of
commercial paper or the equivalent issued by Sears Roebuck Acceptance Corp.
("SRAC") as reported in the monthly report to the SRAC Board of Directors
shall be credited to the amounts previously accrued in each Subaccount for
the period from the date amounts were credited to such Subaccount to the end
of such calendar month.
(b) Subaccount #2 - Common Share Units. Compensation
deferred into Subaccount #2 shall be credited to the Subaccount on the same
date when it would otherwise be payable to the Participant. Such
Compensation shall be converted into a number of Common Share Units on the
date credited to the Subaccount by dividing the Compensation deferred by the
Fair Market Value on such date. If Common Share Units exist in a
Participant's Subaccount which are indexed under Subaccount #2 on a dividend
record date for the Company's common shares, Dividend Equivalents shall be
credited to the Participant's Subaccount on the related dividend payment
date, and shall be converted into the number of Common Share Units which
could be purchased with the amount of Dividend Equivalents so credited.
In the event of any change in the Company's common shares
outstanding, by reason of any stock split or dividend, recapitalization,
merger, consolidation, combination or exchange of stock or similar corporate
change, the Committee shall make such equitable adjustments, if any, by
reason of any such change, deemed appropriate in the number of Common Share
Units credited to each Participant's Subaccount #. 2.
(c) Subaccount #3 - Equity Index Subaccount.
Compensation deferred into Subaccount #3 shall be credited to the Subaccount
on the same date when it would otherwise be payable to the Participant. On
the last day in the month the amounts in the Participant's Subaccount shall
be adjusted by a percentage factor based on the total return (including
dividends) of the Equity Index from the date the amount was credited to the
Subaccount for amounts credited during the month or from the last day of the
preceding month for amounts in the Subaccount on such day. Similar
adjustments shall also be made on any date the Subaccount is debited by
reason of any transfer of an amount to another Subaccount or distribution to
the Participant. In the event that the Equity Index is not published for any
date referred to above, the Equity Index for the closest day preceding such
date for which such Index is published shall be used.
(d) Subaccount #4 - Fixed Income Index Subaccount.
Compensation deferred into Subaccount #4 shall be credited to the Subaccount
on the same date when it would otherwise be payable to the Participant.
Amounts credited to the Subaccount shall earn additional amounts which will
be credited to the Subaccount on the last business day of each month based
upon the performance of the Fixed Income Index.
(e) Subaccount #5 - Restricted Common Share Unit
Account. Compensation deferred into Subaccount #5 shall be credited to the
Subaccount on the same date when it would otherwise be payable to the
Participant. If a Participant has elected to defer all or any portion of
his or her annual bonus Compensation or LTIP Compensation under any plan,
contract, authorization or arrangement of the Company, then the Participant
may elect to invest such deferrals in restricted common share units and the
dollar amount of such Compensation will be allocated to Subaccount #5 and to
no other Subaccount, except as provided below.
Such amounts will be converted into Common Share Units on
the above-mentioned date and thereafter will be held in Subaccount #5 and
administered for all purposes in the same manner as Compensation deferred
into the Common Share Unit Account set forth in Section 4.3(c), including but
not limited to, the allocation of Dividend Equivalents. Any event that would
cause a forfeiture of restricted shares under any of the above-mentioned
plans or arrangements of the Company shall cause a forfeiture of Common Share
Units under Subaccount #5.
On the date on which all restrictions would lapse if a
participant had received restricted common shares pursuant to any of the
above-mentioned plans or arrangements, instead of restricted common share
units pursuant to this Plan, all Dividend Equivalents (except for Dividend
Equivalents accruing as of the close of business on such date) will cease to
accrue and all amounts in Subaccount #5 will automatically be transferred
into Subaccount #2 and thereafter will be subject to all of the provisions of
the Plan applicable to Subaccount #2, including provisions relating to
transfers of amounts between Subaccount #2 and other Subaccounts and
distribution.
Under no circumstances may a Participant who has received
restricted common shares of the Company pursuant to any plan or arrangement
be allowed to defer such shares into this Plan.
(f) Transfers between Subaccounts. Transfers among
Subaccounts #1, #2, #3 and #4 may be made once for each calendar month at the
request of the Participant upon application to the Committee, and shall be
effective as of the first day of the calendar month subsequent to the month
in which the Company receives such Participant's request to transfer. Except
for the mandatory transfer referred to in Section 4.3(e) above, no transfers
shall be allowed to or from Subaccount #5.
With respect to a Section 16(a) Participant, in the case of:
(i) any election to transfer or withdraw from Subaccount #2 which occurs
within six months after an election to transfer into Subaccount #2 or into
another Equity Fund Account; and
(ii) any election to transfer into Subaccount #2 which occurs within six
months after an election to transfer or withdraw from Subaccount #2 or from
another Equity Fund Account,
the second election shall be deemed not to have occurred for any purpose
under this Plan, and the account of any such Section 16(a) Participant shall
continue to reflect all balances and accruals as if such election had not
been made. The Company is authorized to make any adjustments to a Section
16(a) Participant's account as may be necessary to give effect to the
foregoing provision.
(g) The following definitions apply to this Section 4.3:
1) "Common Share Unit" shall mean an amount of
Compensation deferred which is converted into a unit or fraction of a unit
for purposes of the Plan by dividing a dollar amount by the Fair Market Value
of one of the Company's common shares.
2) "Common shares" shall mean the Company's common shares, par value
$.75 per share.
3) "Dividend Equivalent" shall mean an amount
equal to the cash dividend paid on one of the Company's common shares
credited to a Subaccount for each Common Share Unit credited to such
Subaccount.
4) "Equity Fund Account" shall mean an account
for a Section 16(a) Participant maintained under a benefit plan of the
Company, that contains a Company "equity security" within the meaning of the
term "equity security of such issuer" in Rule 16a-1 under the Exchange Act.
5) "Equity Index" shall mean the Standard &
Poor's 500 Composite Stock Price Index which is a market value-weighted index
consisting of 500 common stocks of large U.S. domiciled companies selected by
Standard and Poor's Corporation ("S&P") through a detailed screening process
starting on a macro-economic level and working toward a micro-economic level
dealing with company specific information such as market value, industry
group classification, capitalization and trading activity. S&P's primary
objective for the S&P Index is to represent the segment of the U.S. equity
securities markets consisting of large market capitalization stocks.
However, companies are not selected by S&P for inclusion because they are
expected to have superior stock price performance relative to the market in
general or other stocks in particular.
6) "Fair Market Value" shall mean the closing
price of the Company's common shares as reported by the Wall Street Journal
or other comparable source in a summary of composite transactions for stocks
listed on the New York Stock Exchange.
7) "Fixed Income Index" shall mean the Lehman
Brothers Aggregate Bond Index, which is made up of the Lehman
Government/Corporate Bond Index ("Bond Index"), the Lehman Mortgage-Backed
Securities Index ("Mortgage-Backed Securities Index"), and the Lehman Asset-
Backed Securities Index ("Asset-Backed Securities Index"). The Bond Index is
a composite of all publicly issued, fixed rate, nonconvertible, domestic
bonds. The issues are rated investment grade or higher by Moody's Investors
Service, Inc., S&P, or Fitch Investors Service, Inc., in that order, have a
minimum outstanding principal of $100 million for U.S. Government issues or
$50 million for other bonds, and have a maturity of at least one year. The
index is capitalization-weighted. The Mortgage-Backed Securities Index
includes 15- and 30-year fixed rate securities backed by mortgage pools of
the Government National Mortgage Association, the Federal Home Loan Mortgage
Corporation, and the Federal National Mortgage Association. Graduated
payment mortgages and balloon mortgages are included in the index; buydown,
manufactured homes and graduated equity mortgages are not. The Asset-Backed
Securities Index is composed of credit card, auto, and home equity loans.
Included in the index are pass-through, bullet (noncallable), and controlled
amortization structures; no subordination tranches are included. All
securities have an average life of at least one year.
8) "Subaccount" shall mean the portion of the
balance in an Account reflecting the Compensation deferred and indexed, as
specified by the Participant, against one of the indices set forth in
Sections 4.3(a), (b), (c), (d) or (e), and the interest amounts credited
thereto.
(h) Each Participant may vary the choice of indices
against which interest on Compensation is measured by executing and
delivering a notice to the Director of Compensation of the Company at any
time. Such election shall be applicable only to Compensation payable on or
after the first day of the month following the month in which such Notice of
Election is received.
4.4 Vesting
A Participant shall be fully vested in his/her Deferred
Compensation Account at all times, subject to Sections 3.3 and 8.2.
4.5 Transfers
In the event of a Transfer, deferrals of Compensation under
this Plan shall be discontinued as of the first day of the pay period during
which the Transfer becomes effective, according to Company policy. The
Participant's Account shall continue to accrue interest in the same manner as
the Accounts of all other Participants, until such time as the Account is
distributable pursuant to Article V. In the event such an Employee again
becomes an Eligible Employee, he will be notified of his eligibility to
become a Participant again in accordance with the procedure set forth in
Section 2.3 and may elect to become a Participant again in accordance with
the procedure in Section 2.4.
ARTICLE V
PAYMENTS
5.1 Events Causing Accounts to Become
Distributable
A Participant's Account becomes distributable on the date on
which any of the following occurs:
(a) Separation from Service;
(b) In a lump sum, one or two years subsequent to
Separation from Service, at the election of the Participant;
(c) Demonstration of Hardship by the Participant to the
Committee or its representative; and
(d) As to all or any portion of an Account attributable
to Compensation deferred and interest accrued thereon after the date on which
the Committee receives a Participant's election form under this subsection
5.1(d) as shall be irrevocably specified by the Participant, on a date
certain occurring at any time subsequent to the fiscal year in which the
Participant first participates in the Plan. Any balance in the Participant's
Account remaining after any payment under this paragraph (d) and any balance
in the Account attributable to participation in the Plan in any year
subsequent to the year in which a payout on such date certain occurs, shall
be paid to the Participant as provided in paragraphs (a), (b) or (c) above.
Notwithstanding any contrary election by a Participant, any payment under
this Section 5.1 which would be made at a time when a Participant is a
"covered employee" as defined in Section 162(m) of the Internal Revenue Code
of 1986, as amended, and which the Company would be prohibited by said
Section 162(m) from claiming as a deduction on any tax return shall continue
to be deferred hereunder until the first date on which the Company can claim
such deduction, unless further deferred as provided in Section 5.1(b).
5.2 Notice of Account Payment and Commencement
of Distribution
The Committee or its appointed representative shall notify
a Participant or Beneficiary, as the case may be, that he/she is entitled to
receive payment from an Account, no later than the first day of the month
succeeding the date on which the Account becomes distributable, or as soon
thereafter as practicable. Distribution of Account balances shall commence
on the first day of the month following the date on which the Account becomes
distributable, or as soon thereafter as practicable.
5.3 Form of Payment
(a) Except as provided in paragraphs (c) and (d) of this
Section 5.3 and Article VIII hereof, payments of Account balances to a
Participant shall be in the form of one lump sum payment or annual cash
installment payments over a period of from 1 to 10 years, at the election of
the Participant. At the election of the Participant, payment of the first
installment may be delayed until one year after the Participant's Separation
from Service.
(b) The following formula shall be used to determine
each annual installment payment to a Participant who has elected to receive
installment payments:
remaining Account balance as of
the current payment date
--------------------------------------------------
number of remaining payments, including the current one
Annual payments shall be made on the day payments commence pursuant to
Section 5.2 and on each annual anniversary date of such initial payment.
Interest shall continue to accrue on the entire unpaid Account balance, as
provided in Section 4.3.
(c) In the event of a Participant's death prior to full
distribution of his/her Account, the remaining Account balance shall be paid
in a lump-sum to the Beneficiary or Beneficiaries, according to the
designation made by the Participant, as soon as practicable after a
Participant's death, and shall accrue interest until the account is
completely distributed.
(d) Notwithstanding the provisions of paragraph (b)
above, if the remaining unpaid Account balance is $5,000 or less on any date
an annual installment payment is to be made to a Participant, the payment
shall be the remaining unpaid Account balance.
5.4 Distribution Election
(a) Each Participant shall give written notice of
his/her desired form of payment at the time of his/her participation election
set forth in Section 2.4.
(b) Except for distribution elections under Section
5.1(d), each Participant may from time to time revise the terms of
distribution of the Participant's Account by submitting a revised written
notice of his/her desired form of payment, provided that (i) the revised
written notice of his/her desired form of payment shall be filed by the
Participant with the Committee or its representative no less than twelve
months prior to the date on which payment would commence to be made in the
absence of such revised written notice, but in any event no later than the
day before the date of the Participant's Separation from Service and (ii) in
any event, distribution of the Participant's Account shall not commence
earlier than twelve months after the
Participant's revised notice of his/her desired form of payment is filed with
the Committee or its representative.
5.5 Distribution Election Form
The Committee shall approve and distribute to all
Participants a form which shall be used by each Participant to notify the
Committee of his/her desired form of payment or to notify the Committee of
any revision to his/her desired form of payment. Such form shall clearly
delineate the payment alternatives provided pursuant to Section 5.4 hereof.
ARTICLE VI
ADMINISTRATION
6.1 General Administration; Rights and Duties
Subject to the express limitations of the Plan, the
Committee, on behalf of the Participants, shall be charged with the general
administration of the Plan and with the responsibility for carrying out its
provisions, and shall have all powers necessary to accomplish those purposes,
including, but not by way of limitation, the following:
(a) To construe and interpret the Plan;
(b) To compute the amount of benefits payable to Participants;
(c) To authorize all disbursements by the Company of Account
balances pursuant to the Plan;
(d) To maintain all the necessary records for the administration
of the Plan;
(e) To make and publish rules for the administration and
interpretation of the Plan and the transaction of its business;
(f) To inform each Participant as soon as practicable after
January 1 of each Plan Year, of the value of the Participant's Deferred
Compensation Account as of the end of the previous Plan Year; and
(g) To appoint (i) officers or Employees of the Company whom the
Committee believes to be reliable and competent; and (ii) legal counsel (who
may be Employees of the Company and Participants), independent accountants
and other persons to assist the Committee in administering the Plan.
The determination of the Committee as to any disputed
question or controversy shall be conclusive.
Any member of the Committee may resign by delivering a
written resignation to the Board.
ARTICLE VII
PLAN AMENDMENTS AND TERMINATION
7.1 Amendments
The Company shall have the right to amend this Plan from time
to time by resolutions of the Board or by the Committee, and to amend or
rescind any such amendments; provided, however, that no action under this
Section 7.1 shall in any way reduce the amount of Compensation deferred or
any interest thereon, up to and including the end of the month in which such
action is taken; and provided further that Sections 2.1(a) and 3.1(a) may be
amended only by the Board. Interest will continue to accrue as provided in
Section 4.3. All such amendments shall be in writing and shall be effective
as provided by the Board or the Committee, as the case may be, subject to the
limitations in this Section 7.1. The Committee shall inform each Participant
as soon as practicable following the enactment of any such amendment.
7.2 Termination of Plan
Although the Company expects that this Plan will continue
indefinitely, continuance of this Plan is not a contractual or other
obligation of the Company, and the Company expressly reserves its right to
discontinue this Plan at any time by resolutions of the Board or the
Compensation Committee of the Board, effective as provided in such
resolutions. However, no such action shall in any way reduce the amount of
Compensation deferred or any interest thereon, up to and including the end of
the month in which such action is taken. Interest will continue to accrue as
provided in Section 4.3.
ARTICLE VIII
MISCELLANEOUS
8.1 Notification to Committee
Any notification given by a Participant pursuant to this Plan
shall be made in writing to the Committee or to such representative of the
Committee as may be designated by it for such purpose, and shall be deemed to
have been made or given on the date received by the Committee or such
representative.
8.2 Participants' Employment
Participation in this Plan shall not give any Participant the
right to be retained in the Company's employ or any right or interest other
than as herein provided. No Participant or Employee shall have any right to
any payment or benefit hereunder except to the extent provided in this Plan.
The Company expressly reserves the right to dismiss any Participant without
any liability for any claim against the Company, except to the extent
expressly provided herein. This Plan shall create only a contractual
obligation on the part of the Company and shall not be construed as creating
a trust or other fiduciary relationship with Participants. Participants will
have only the rights of general unsecured creditors of the Company with
respect to Compensation deferred and interest credited to their Accounts.
8.3 Other Plans
This Plan shall not affect the right of any Employee or
Participant to participate in and receive benefits under and in accordance
with the provisions of any other Company plans which are now or may hereafter
be in existence.
8.4 Beneficiaries and Contingent Beneficiaries
Each Participant shall, by written notice to the Committee,
designate one or more persons or entities (including a trust or trusts or
his/her estate) to receive any balance in his/her Deferred Compensation
Account and interest thereon, payable to him/her under this Plan in the event
of his/her death prior to full payment thereof. The Participant may also
designate a person or persons as a Contingent Beneficiary or Contingent
Beneficiaries who shall succeed to the rights of the person or persons
originally designated as Beneficiary or Beneficiaries, in case the latter
should die. He/she may from time to time change any designation of
Beneficiary or Contingent Beneficiary so made, and the last written notice
given by him/her to the Committee shall be controlling. In the event a
Participant designates a person other than his/her spouse as Beneficiary of
any interests under this Plan, the Participant's spouse shall sign a
statement specifically approving such designation and authorizing the
Committee to make payment of such interests in the manner provided in such
designation. In the absence of such designation by the Participant, or in
the absence of spousal approval and authorization as hereinabove provided, or
in the event of the death prior to or simultaneous with the death of the
Participant, of all Beneficiaries or Contingent Beneficiaries, as the case
may be, to whom payments were to be made pursuant to a designation under this
Section, and failing any other valid designation by the Participant, such
payments or any balance thereof shall be paid to such Participant's legal
representatives. In the event of the death, subsequent to the death of the
Participant, of all Beneficiaries or Contingent Beneficiaries, as the case
may be, to whom such payments were to be made or were being made pursuant to
a designation under this section, such payments or any balance thereof shall
be paid to the legal representatives of such Beneficiaries or Contingent
Beneficiaries.
8.5 Taxes
To the extent permitted by law, if the whole or any part of
a Participant's Account shall become the subject of any estate, inheritance,
income or other tax which the Company shall legally be required to withhold
and/or pay, the Company shall have full power and authority to pay such tax
out of any monies or other property in its hands and charge such amounts paid
against the Account of the Participant whose interest hereunder is subject to
such taxes. Prior to making any such tax payment, the Company may require
such releases or other documents from any lawful taxing authority as the
Company shall deem necessary.
8.6 Benefits Not Assignable; Obligations
Binding Upon Successors
Benefits under this Plan and rights to receive the amounts
credited to the Account of a Participant shall not be assignable or
transferable and any purported transfer, assignment, pledge or other
encumbrance or attachment of any payments or benefits under this Plan, other
than by operation of law, shall not be permitted or recognized. Obligations
of the Company under this Plan shall be binding upon successors of the
Company.
8.7 Illinois Law Governs; Saving Clause
The validity of this Plan or any of its provisions shall be
construed and governed in all respects under and by the laws of the State of
Illinois. If any provisions of this Plan shall be held by a court of
competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
8.8 Headings Not Part of Plan
Headings and subheadings in this Plan are inserted for
reference only, and are not to be considered in the construction of the
provisions hereof.
8.9 Mid-Year Participants
Notwithstanding Article III and Sections 4.5, 5.4 and 5.5 of
the Plan, any person who shall be elected or appointed as an officer of a
Participating Employer and who expects to have Compensation over the amount
specified in Section 2.1 of the Plan for the Plan Year of his or her election
as an officer, and any person who becomes eligible to participate in an LTIP
("Mid-Year Participants"), shall be an Eligible Employee and may be a
Participant, with respect to the portion of the Plan Year beginning the day
after the effective date of election or appointment, or eligibility to
participate in an LTIP. The Director of Compensation of the Company is
directed to notify all persons who become Mid-Year Participants of their
eligibility to participate in the Plan, as soon as practicable after their
election or appointment or after they become eligible to participate in an
LTIP. Each Mid-Year Participant shall give written notice to the Committee
or its representative, of his or her election to become a Participant in the
Plan for the remainder of such Plan Year, on a form to be provided by the
Company. If a Mid-Year Participant fails to give such written notice of
election within 30 days of being notified of his or her eligibility, such
failure will be deemed an election not to become a Participant for the
remainder of such Plan Year.
EXHIBIT 5.1
SEARS, ROEBUCK AND CO.
3333 BEVERLY ROAD
HOFFMAN ESTATES, ILLINOIS 60179
Nancy K. Bellis
Law Department
Assistant General Counsel
847/286-5767
Facsimile 847/286-0959
December 24, 1997
Board of Directors
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Ladies and Gentlemen:
I have acted as counsel for Sears, Roebuck and Co. (the "Company")
in connection with the registration on Form S-8 (the "Registration
Statement") of $25,000,000 of the Company's deferred compensation
obligations (the "Obligations"), which are issuable under the Sears, Roebuck
and Co. Deferred Compensation Plan (the "Plan"), as amended and restated on
February 4, 1997.
On the basis of such investigation as I deemed necessary, I am of the
opinion that:
(1) the Company has been duly incorporated and is validly
existing under the laws of
the State of New York; and
(2) the Obligations have been duly authorized and, when issued
in accordance with
the terms and conditions set forth in the Plan, will be validly
issued.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly
yours,
/s/NANCY
K. BELLIS
Nancy K. Bellis
Assistant
General Counsel
EXHIBIT 15
Deloitte & Touche LLP Telephone: (312) 946-3000
Two Prudential Plaza Facsimile: (312) 946-2600
180 North Stetson Avenue
Chicago, Illinois 60601-6779
December 17, 1997
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
financial information of Sears, Roebuck and Co. for the periods ended March
29, 1997 and March 30, 1996, June 28, 1997 and June 29, 1996 and
September 27, 1997 and September 28, 1996, as indicated in our reports dated
April 17, 1997, July 24, 1997 and October 28, 1997, respectively; because we
did not perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarters ended March 29, 1997, June
28, 1997 and September 27, 1997, are being used in this Registration
Statement.
We are also aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
Deloitte & Touche LLP
Chicago, Illinois
EXHIBIT 5.2
MAYER, BROWN & PLATT
190 SOUTH LA SALLE STREET
CHICAGO, ILLINOIS 60603-3441
CHRISTINE LUTGENS
DIRECT DIAL (312) 701-7381 MAIN TELEPHONE
DIRECT FAX (312) 706-9124 312-782-0600
[email protected] MAIN FAX
312-701-7711
December 15, 1997
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Re: Sears Deferred Compensation Plan
Ladies and Gentlemen:
We have acted as special counsel to Sears, Roebuck and Co. (the
"Company") in connection with the registration by the Company under the
Securities Act of 1933, as amended (the "1933 Act"), of obligations
("Deferred Compensation Obligations") which may be incurred by the Company
pursuant to the Sears Deferred Compensation Plan (the "Plan"), and the filing
with the Securities and Exchange Commission (the "Commission") of a
registration statement on Form S-8 relating to the Deferred Compensation
Obligations (the "Registration Statement").
As such special counsel, we have made such legal and factual
examinations and inquiries as we have deemed necessary or appropriate for
purposes of this opinion, and have made such additional assumptions as are
set forth below.
The Plan allows eligible employees to defer the receipt of certain
compensation otherwise payable to such eligible employees in accordance with
the terms of the Plan. The Plan further states that amounts deferred by
eligible employees under the Plan shall be part of the Company's general
funds to be deposited , invested or expended in any manner whatsoever by the
Company and shall be subject to the risks of the Company's business. The
Plan by its terms limits eligibility to employees who are designated by the
Board of Directors of the Company from time to time as "executive officers"
for purpose of Section 16 of the Securities Exchange Act of 1934, and to
other key officers and employees approved by the committee appointed by the
Board to administer the Plan who have compensation from the Company in excess
of the limits set forth in section 401(a)(17) of the Internal Revenue Code of
1986, as amended. For the purpose of this opinion, we have assumed that (1)
the Plan was duly adopted by the Company and was duly amended and restated in
its current form (effective February 4, 1997), and (2) the Plan is maintained
primarily for the purpose of providing deferred compensation to a select
group of management or highly compensated employees.
The Plan permits a deferral of income by eligible employees for
periods extending to the termination of employment or beyond. Accordingly,
the Plan by its terms appears to fall within the definition of an "employee
pension benefit plan" in section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). However, as a plan that is
unfunded and maintained primarily for the purpose of providing deferred
compensation to a select group of management or highly compensated employees
(commonly referred to as a "top hat plan"), the Plan is only subject to parts
1 and 5 of Title I of ERISA.
Parts 1 and 5 of Title I of ERISA do not impose any specific written
requirements on top hat plans as a condition to compliance with the
applicable provisions of ERISA. Rather, they relate to reporting and
disclosure requirements and administration and enforcement which govern the
operation of plans like the Plan.
There being no express terms of the Plan that contravene or conflict
with the provisions of Parts 1 and 5 of Title I of ERISA, we are of the
opinion that the provisions of the written document constituting the Plan
comply with the applicable requirements of ERISA.
This opinion letter is issued as of the date hereof and is limited
to the laws now in effect, and in all respects is subject to and may be
limited by future legislation, as well as by future case law. We assume no
responsibility to keep this opinion current or to supplement it to reflect
facts or circumstances which may hereafter come to our attention or any
changes in laws which may hereafter occur.
We hereby expressly consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement.
Very truly yours,
MAYER, BROWN & PLATT
By /s/HRISTINE LUTGENS
Christine Lutgens
CL:ct
EXHIBIT 23.1
Deloitte & Touche LLP Telephone: (312) 946-3000
Two Prudential Plaza Facsimile: (312) 946-2600
180 North Stetson Avenue
Chicago, Illinois 60601-6779
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Sears, Roebuck and Co. on Form S-8 related to the Deferred Compensation
Plan of our report dated February 10, 1997, incorporated by reference in the
Annual Report on Form 10-K of Sears, Roebuck and Co. for the year ended
December 28, 1996, and to the references to us under the heading "Experts" in
the Prospectus, which is a part of this Registration Statement 1, and in Part
I of this Registration Statement.
Deloitte & Touche LLP
Chicago, Illinois
December 17, 1996
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being
a director or officer, or both, of SEARS, ROEBUCK AND CO., a New York
corporation (the "Company"), does hereby constitute and appoint ARTHUR C.
MARTINEZ, , ALAN J. LACY, MICHAEL D. LEVIN, JAMES A. BLANDA and ALICE M.
PETERSON, with full power to each of them to act alone, as the true and
lawful attorneys and agents of the undersigned, with full power of
substitution and resubstitution to each of said attorneys, to execute, file
or deliver any and all instruments and to do any and all acts and things
which said attorneys and agents, or any of them, deem advisable to enable the
Company to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any requirements or regulations of the Securities and
Exchange Commission in respect thereto, in connection with the registration
under said Securities Act of the estimated dollar amount of deferrals under
the Sears, Roebuck and Co. Deferred Compensation Plan (the "Plan") which may
be made by participants in the Plan during the period from the effective date
of said registration statement to the effective date of the next registration
statement relating to deferrals under the Plan; including specifically, but
without limitation of the general authority hereby granted, the power and
authority to sign his or her name as an officer of the Company to (i) the
registration statement, any amendment, post-effective amendment or supplement
thereto, any prospectus or other document which is part of the registration
statement, and any amendments, supplements or revisions to such prospectus or
document; and (ii) any amendment or post-effective amendment as shall be
necessary or appropriate to any registration statement heretofore filed under
the Securities Act with respect to deferrals under the Plan; and the
undersigned does hereby fully ratify and confirm all that said attorneys and
agents, or any of them, or the substitute of any of them, shall do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed these
presents, this 30th day of September, 1997.
Name TITLE
/s/ ARTHUR C. MARTINEZ
Arthur C. Martinez
Director, Chairman of the Board of
Directors and Chief Executive Officer
(Principal Executive Officer)
/s/ ALAN J. LACY
Alan J. Lacy
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
/S/ JAMES A. BLANDA
James A. Blanda
Vice President and Controller
(Principal Accounting Officer)
/S/ HALL ADAMS, JR.
Hall Adams, Jr.
Director
/S/ WARREN L. BATTS
Warren L. Batts
Director
/S/ ALSTON D. CORRELL, JR.
Alston D. Correll, Jr.
Director
/S/ MICHAEL A. MILES
Michael A. Miles
Director
/S/ RICHARD C. NOTEBAERT
Richard C. Notebaert
Director
/S/ HUGH B. PRICE
Hugh B. Price
Director
/S/ CLARENCE B. ROGERS, JR.
Clarence B. Rogers, Jr.
Director
/S/ DONALD H. RUMSFELD
Donald H. Rumsfeld
Director
/S/ PATRICK G. RYAN
Patrick G. Ryan
Director
/S/ DOROTHY A. TERRELL
Dorothy A. Terrell
Director
EXHIBIT 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being an
officer of SEARS, ROEBUCK AND CO., a New York corporation (the "Company"),
does hereby constitute and appoint ARTHUR C. MARTINEZ, ALAN J. LACY, MICHAEL
D. LEVIN, JAMES A. BLANDA and ALICE M. PETERSON, with full power to each of
them to act alone, as the true and lawful attorneys and agents of the
undersigned, with full power of substitution and resubstitution to each of
said attorneys, to execute, file or deliver any and all instruments and to do
any and all acts and things which said attorneys and agents, or any of them,
deem advisable to enable the Company to comply with the Securities Act of
1933, as amended (the "Securities Act"), and any requirements or regulations
of the Securities and Exchange Commission in respect thereto, in connection
with the registration under the Securities Act of the estimated dollar amount
of deferrals under the Sears, Roebuck and Co. Deferred Compensation Plan (the
"Plan") which may be made by participants in the Plan during the period from
the effective date of said registration statement to the effective date of
the next registration statement relating to deferrals under the Plan,
including specifically, but without limitation of the general authority
hereby granted, the power and authority to sign his name as an officer of the
Company to (i) the registration statement, any amendment, post-effective
amendment or supplement thereto, any prospectus or other document which is
part of the registration statement, and any amendments, supplements or
revisions to such prospectus or document; and (ii) any amendment or post-
effective amendment as shall be necessary or appropriate to any registration
statement heretofore filed under the Securities Act with respect to deferrals
under the Plan; and the undersigned does hereby fully ratify and confirm all
that said attorneys and agents, or any of them, or the substitute of any of
them, shall do or cause to be done by virtue hereof.
` IN WITNESS WHEREOF, the undersigned has subscribed these presents,
as of the 11th day of December, 1997.
/s/GARY L. CRITTENDEN
Gary L. Crittenden
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
EXHIBIT 24.3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, being a
director of SEARS, ROEBUCK AND CO., a New York corporation (the "Company"),
does hereby constitute and appoint ARTHUR C. MARTINEZ, ALAN J. LACY, MICHAEL
D. LEVIN, JAMES A. BLANDA and ALICE M. PETERSON, with full power to each of
them to act alone, as the true and lawful attorneys and agents of the
undersigned, with full power of substitution and resubstitution to each of
said attorneys, to execute, file or deliver any and all instruments and to do
any and all acts and things which said attorneys and agents, or any of them,
deem advisable to enable the Company to comply with the Securities Act of
1933, as amended (the "Securities Act"), and any requirements or regulations
of the Securities and Exchange Commission in respect thereto, in connection
with the registration under the Securities Act of the estimated dollar amount
of deferrals under the Sears, Roebuck and Co. Deferred Compensation Plan (the
"Plan") which may be made by participants in the Plan during the period from
the effective date of said registration statement to the effective date of
the next registration statement relating to deferrals under the Plan,
including specifically, but without limitation of the general authority
hereby granted, the power and authority to sign her name as a director of the
Company to (i) the registration statement, any amendment, post-effective
amendment or supplement thereto, any prospectus or other document which is
part of the registration statement, and any amendments, supplements or
revisions to such prospectus or document; and (ii) any amendment or post-
effective amendment as shall be necessary or appropriate to any registration
statement heretofore filed under the Securities Act with respect to deferrals
under the Plan; and the undersigned does hereby fully ratify and confirm all
that said attorneys and agents, or any of them, or the substitute of any of
them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents,
as of the 17th day of December, 1997.
/s/BRENDA C. BARNES
Brenda C. Barnes
Director
