As filed with the Securities and Exchange Commission on December 10, 1999,
Registration No. 333-______
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 36-1750680
(State of incorporation) (I.R.S. Employer Identification No.)
3333 Beverly Road
Hoffman Estates, Illinois 60179
(Address of principal executive offices) (Zip Code)
Sears 401(k) Profit Sharing Plan
(Full title of the plan)
Anastasia D. Kelly, Esq.
Executive Vice President and General Counsel
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, IL 60179
Telephone number, including area code, of agent for service: (847) 286-2500
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed maximum Proposed maximum Amount of
Securities registered offering price aggregate registration
to be per share offering price fee
registered(1)
Common Shares,
par value $0.75 5,000,000 shares $31.15625(2) $155,781,250(2) $41,127(3)
_____________________________
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for purposes of determining the amount of the registration
fee, in accordance with Rule 457(h)(i) and Rule 457(c) under the Securities
Act of 1933, on the basis of the average of the high and low prices of Sears
common shares on the New York Stock Exchange on December 9, 1999.
(3) A registration fee of $54,898 was paid with respect to the earlier
registration of 3,000,000 common shares pursuant to Registration No. 333-
53149, of which $24,114 represented the proportionate amount of the fee
associated with the common shares that have not yet been sold.
Pursuant to General Instruction E of Form S-8, the contents of Registration
Statement No. 333-53149 (filed May 20, 1998) are incorporated by reference.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed by Sears, Roebuck and Co. with the
Securities and Exchange Commission (the "Commission") are incorporated into
this Registration Statement 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statement or information therein is modified, superseded or replaced by a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 January 2,
1999,
(2) Sears Quarterly Reports on Form 10-Q for the quarters ended April 3,
July 3 and October 2, 1999;
(3) Sears Current Reports on Form 8-K dated January 21, February 9,
February 18, February 19, March 11, April 23, June 29, July 2 and
September 2, 1999;
(4) The description of Sears common shares contained in Item 5 on page 17
of Sears Annual Report on Form 10-K for the year ended January 2,
1999;
(5) Sears 401(k) Profit Sharing Plan's Annual Report on Form 11-K for the
year ended December 31, 1999; and
(6) 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 Securities
Exchange Act of 1934 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article V of the By-Laws of Sears, relating to indemnification of
directors and officers, is incorporated by reference to Exhibit 3.(ii) to the
Annual Report on Form 10-K of Sears for the year ended January 2, 1999.
Judgments or decrees rendered against Sears 401(k) Profit Sharing Plan
(the "Plan"), the Trustee, the Investment Committee or other fiduciaries that
are not based upon a breach of fiduciary responsibility are to be satisfied
from Plan assets and not from assets of the Trustee, the members of the
Investment Committee or other named fiduciaries.
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 Sears Investment Management Co. ("SIMCO") or the
Plan) at the request of Sears, against judgments, fines, amounts paid in
settlement and expenses (including attorneys' fees) incurred as a result of
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. As
authorized by the Delaware General Corporation Law ("GCL"), the by-laws of
SIMCO also provide for indemnification of directors, officers, employees and
agents of SIMCO in a manner generally similar to that described above.
The BCL authorizes Sears, and the GCL authorizes SIMCO, to purchase
indemnification insurance.
Sears has in effect insurance policies that provide total coverage of
$150,000,000 (subject to a deductible) over a three year period ending March
31, 2001. The policies insure directors and officers of Sears and of certain
other entities (including SIMCO and the Plan) against claims arising from
their service as directors or officers. The policies also provide for the
payment by the insurer of amounts, excluding certain fines and penalties that
are legally uninsurable and certain other matters, which Sears, certain other
entities (including SIMCO and the Plan), 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. In
addition, the policies insure against employment practices liability.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8 Exhibits.
The Exhibits to this Registration Statement are listed in the Exhibit
Index beginning on page E-1 of this Registration Statement, which Index is
incorporated herein by reference.
The Registrant will submit the Plan document as amended and restated and
all amendments thereto to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to qualify the
Plan.
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(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)(l)(i) and (A)(l)(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 Securities
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 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 and each filing of the Plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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
The Registrant. 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 the 10th
of December, 1999.
SEARS, ROEBUCK AND CO.
By: /s/ JEFFREY N. BOYER
Jeffrey N. Boyer
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
<S>
Signature Title
<C> <C>
/s/ARTHUR C. MARTINEZ* Chairman of the Board of
Arthur C. Martinez Directors, President and
Chief Executive Officer
(Principal Executive Officer)
/s/JEFFREY N. BOYER* Chief Financial Officer
Jeffrey N. Boyer (Principal Financial Officer
and 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/W. JAMES FARRELL* Director
W. James Farrell
/s/MICHAEL A. MILES* Director
Michael A. Miles
/s/RICHARD C. NOTEBAERT* Director
Richard C. Notebaert
/s/HUGH B. PRICE* Director
Hugh B. Price
/s/PATRICK G. RYAN* Director
Patrick G. Ryan
/s/DOROTHY A. TERRELL* Director
Dorothy A. Terrell
</TABLE>
*By:/s/JEFFREY N. BOYER (Attorney-in-Fact)
Jeffrey N. Boyer
Date: December 10, 1999
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the administrator of Sears 401(k) Profit Sharing Plan has duly caused
this Registration Statement to be signed on the Plan's behalf by the
undersigned, thereunto duly authorized, in Hoffman Estates, State of
Illinois, on the 10th day of December, 1999.
SEARS 401(K) PROFIT SHARING PLAN
By: SEARS, ROEBUCK AND CO.
Plan Administrator
BY: /s/JOHN SLOAN
John Sloan, Executive Vice
President, Human Resources
EXHIBIT INDEX
Exhibit
Number
4.1 Sears 401(k) Profit Sharing Plan as Amended and Restated as of January 1,
1998 [Incorporated by reference to Exhibit 99.(i) to Sears Annual Report
on Form 10-K for the year ended January 2, 1999]
4.2 Amendments to Sears 401(k) Profit Sharing Plan dated March 31, 1999*
4.3 Sears 401(k) Profit Sharing Trust Agreement as amended and restated
effective as of January 1, 1998 [Incorporated by reference to Exhibit
99.(iii) to the Annual Report on Form 10-K of Sears, Roebuck and Co. for
the year ended January 3, 1998]
4.4 Amendment to the Sears 401(k) Profit Sharing Trust Agreement dated June
26, 1998 [Incorporated by reference to Exhibit 99.(ii) to Sears Annual
Report on Form 10-K for the year ended January 2, 1999]
4.5 Amendment to the Sears 401(k) Profit Sharing Trust Agreement dated
December 1, 1998 [Incorporated by reference to Exhibit 99.(iii) to Sears
Annual Report on Form 10-K for the year ended January 2, 1999]
4.6 Amendment to the Sears 401(k) Profit Sharing Trust Agreement dated March
31, 1999*
15 Acknowledgment of Deloitte & Touche LLP regarding unaudited interim
information*
23 Consent of Deloitte & Touche LLP*
24 Powers of Attorney of chief executive officer, chief financial officer
and directors of Sears, Roebuck and Co.*
* Filed herewith
EXHIBIT 4.2
March 31, 1999 amendments to the Sears 401(k) Profit Sharing Plan (the
"Plan")
1. New Subsection 6.7 shall be added to the Plan, to read in its
entirety as follows:
"6.7. Sale of Common Stock to the Company. If, because of
distributions, withdrawals or transfers involving Common Stock in
the Company Stock Fund, it is necessary or desirable for the Plan
sell Common Stock, the Trustee shall notify the Company. At the
timely direction of an Investment Manager, the Trustee shall sell
such Common Stock to the Company for cash. The sales price for
the shares of Common Stock sold to the Company shall be no less
than Fair Market Value as defined in subsection 5.1, and no
commission shall be charged on such sale. The Company and the
Trustee shall establish in writing such rules and procedures
regarding such sales as are required to meet applicable laws."
2. A new paragraph shall be added to Supplement A of the Plan, to read
in its entirety as follows:
"If, because of distributions, withdrawals or transfers involving
Common Stock which was held at any time in the Supplemental A
Shares Fund, it is necessary or desirable for the Plan sell Common
Stock, the Trustee shall notify the Company. At the direction of
an Investment Manager, the Trustee shall sell such Common Stock to
the Company for cash. The sales price for the shares of Common
Stock sold to the Company shall be no less than Fair Market Value
as defined in subsection 5.1, and no commission shall be charged
on such sale. The Company and Trustee shall establish in writing
such rules and procedures regarding such sales as are required to
meet applicable laws."
3. A new Subsection C-11 shall be added to Supplement C of the Plan, to
read in its entirety as follows:
"C-11. Sale of ESOP Common Stock to the Company. If, because of
distributions, withdrawals or transfers involving ESOP Common
Stock, it is necessary or desirable for the Plan sell Common
Stock, the Trustee shall notify the Company. At the timely
direction of an Investment Manager, the Trustee shall sell such
Common Stock to the Company for cash. The sales price for the
shares of Common Stock sold to the Company shall be no less than
Fair Market Value as defined in subsection 5.1, and no commission
shall be charged on such sale. The Company and the Trustee shall
establish in writing such rules and procedures regarding such
sales as are required to meet applicable laws."
EXHIBIT 4.6
THIRD AMENDMENT TO THE
SEARS 401(k) PROFIT SHARING TRUST AGREEMENT
This Third Amendment (the "Amendment") dated as of March 31, 1999
by and between Sears, Roebuck and Co., a New York corporation (the
"Company"), and State Street Bank and Trust Company, a Massachusetts
trust company (the "Trustee"), amends the Sears 401 (k) Profit Sharing
Trust Agreement (as amended and restated as of January 1, 1998) between
the Company and the Trustee (the "Trust Agreement").
WHEREAS, the amendment to the Trust Agreement dated as of December
1, 1998, a copy of which is attached hereto (the "December Amendment"),
was erroneously identified as the "First Amendment to the Sears 401(k)
Profit Sharing Trust Agreement" when in fact the Company and the Trustee
had executed a prior First Amendment to the Sears 401 (k) Profit Sharing
Plan on June 26, 1998, with an effective date of January 1, 1998;
WHEREAS, the Company and the Trustee desire to clarify that the
December Amendment is the second amendment to the Trust Agreement; and
WHEREAS, the Company and the Trustee also desire to amend
subsection 4.5(m) of the Trust Agreement to authorize the Trustee to
sell Common Stock in private sales to the Company;
NOW, THEREFORE, the Company and the Trustee hereby agree as
follows:
1) The December Amendment is hereby renamed "Second Amendment to the
Sears 401(k) Profit Sharing Trust Agreement" and the word "First" in
the first sentence of the December Amendment is hereby deleted and
replaced with the word "Second".
2) Subsection 4.5 (m) of the Trust Agreement is hereby deleted and
replaced in its entirety by the following:
"(m) At the direction of an Investment Manager, and otherwise to the
extent permitted by Section 6.1, to purchase or sell Common Stock
in the open market or by private purchase from any source,
including a private purchase from the Company of treasury stock
or newly-issued shares, or private sale to the Company, provided
that (i) any such purchase which is from a party-in-interest (as
defined in Section 3(14) of ERISA) or a disqualified person (as
defined in Section 4975 of the Code) shall be without payment of
any commissions and for an amount which is no greater than
adequate consideration for such Common Stock (as defined in
Section 3(18) of ERISA), and (ii) any such sale which is to a
party-in-interest or disqualified person shall be without the
payment of any commissions and for an amount which is no less
than adequate consideration for such Common Stock. The Company
and the Trustee shall establish such rules and procedures
regarding such purchases and sales as are required to meet
applicable laws."
3) In all other respects, the Trust Agreement shall remain in full force
and effect and shall continue unaffected by this Amendment.
IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the date first above written.
SEARS, ROEBUCK AND CO.
By:/s/ JOHN T. SLOAN
John T. Sloan
Senior Vice President,
Human Resources
STATE STREET BANK AND TRUST COMPANY
By:/s/JOHN SCOTT FEELY
Name: John Scott Feely
Title: Vice President
EXHIBIT 15
To the Shareholders and Board of Directors
of Sears, Roebuck and Co.
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 13-week periods ended
April 3, 1999 and April 4, 1998, the 13-week and 26-week periods ended July 3,
1999 and July 4, 1998, and the 13-week and 39-week periods ended October 2,
1999 and October 3, 1998 as indicated in our reports dated April 30, 1999,
August 2, 1999, and November 3, 1999; because we did not perform an audit, we
expressed no opinion on that information.
We are aware that our reports referred to above, which are included in your
Quarterly Reports on Form 10-Q for the 13-week periods ended April 3, 1999,
July 3, 1999, and October 2, 1999 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.
/s/DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Chicago, Illinois
December 9, 1999
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Sears, Roebuck and Co. on Form S-8 of our reports dated
February 11, 1999 appearing in the Annual Report on Form 10-K of Sears, Roebuck
and Co. for the year ended January 2, 1999 and our report dated May 19, 1999
appearing in the Annual Report on Form 11-K of the Sears 401(k) Profit
Sharing Plan for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Chicago, Illinois
December 9, 1999
EXHIBIT 24
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, JEFFREY N. BOYER, ANASTASIA D. KELLY and LARRY R. RAYMOND
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 and agents, 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 and Sears 401(k) Profit Sharing Plan (the "Plan")
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 common shares of the Company
acquired or to be acquired by the Plan for its participants and
participations in the Plan to be offered to employees upon becoming
eligible for participation, including specifically, but without
limitation of the general authority hereby granted, the power and
authority to sign his or her name as director or officer, or both, of
the Company, as indicated below opposite his or her signature, to (i)
one or more registration statements, or any amendments or post-effective
amendments thereto, to be filed in respect of the common shares of the
Company and participations in the Plan; (ii) the prospectuses or any
amendments, supplements or revisions thereof which are part of any such
registration statements; (iii) any amendment or post-effective amendment
to any registration statement heretofore filed under the Securities Act
with respect to any common shares of the Company and participations in
the Plan; and (iv) any prospectus or any amendment, supplement or
revision thereof which is a part of any registration statement (as the
same may have been amended) heretofore filed under the Securities Act
with respect to common shares of the Company and Plan participations;
and each of 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 his or
her name, this 8th day of December, 1999.
Name Title
/s/ARTHUR C. MARTINEZ Chairman of the Board of
Arthur C. Martinez Directors, President, and Chief
Executive Officer
(Principal Executive Officer)
/s/JEFFREY N. BOYER Chief Financial Officer
Jeffrey N. Boyer (Principal Financial 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/W. JAMES FARRELL Director
W. James Farrell
/s/MICHAEL A. MILES Director
Michael A. Miles
/s/RICHARD C. NOTEBAERT Director
Richard C. Notebaert
/s/HUGH B. PRICE Director
Hugh B. Price
/s/PATRICK G. RYAN Director
Patrick G. Ryan
/s/DOROTHY A. TERRELL Director
Dorothy A. Terrell
