Exhibt 28(b)
SPIEGEL, INC.
CLASS A NON-VOTING COMMON STOCK
OPTION AGREEMENT NO. __
This Option Agreement No. __ entered into this _______ day of
____________________, 19__ , by and between Spiegel, Inc., a Delaware
corporation ("Spiegel"), and _____________________________ ("Optionee").
WHEREAS, Spiegel desires to grant the Optionee an Option to purchase
shares of its $1.00 par value per share Class A Non-Voting Common Stock
("Class A Stock") subject to the terms and conditions hereinafter set forth,
pursuant to the provisions of the Spiegel Group Incentive Stock Option Plan
(the "Plan") which was adopted by Spiegel on November 17, 1998 and which was
subsequently approved by the Class B Voting Common Stockholders of Spiegel.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto
agree as follows:
1. GRANT OF OPTION.
Spiegel, pursuant to the Plan, hereby grants to the
Optionee the option ("Option") to purchase ___________ shares
of Class A Stock, subject to the terms and conditions
hereinafter set forth. The date of the grant of the Option is
the date of this Stock Option Agreement.
2. PURCHASE PRICE.
The purchase price of the Class A Stock covered by
the Option shall be ____________________________________
($________________) per share.
3. PERIOD OF EXERCISE AND TERMS AND CONDITIONS OF OPTION.
This Option may be exercised between the date hereof
and the date ten (10) years after the date hereof from time to
time, in whole or in part as to one or more whole shares of
Class A Stock covered by the Option, subject to the terms and
conditions set forth below. Anything contained herein to the
contrary notwithstanding, the Option granted hereunder shall
not be exercisable in whole or in part after the expiration of
ten (10) years after the date of grant thereof. The Option
granted hereby shall be subject to the following terms and
conditions:
(a) PERIOD OF EXERCISE OF OPTIONS.
Except as otherwise specifically provided herein:
(1) No portion of the Option granted
hereby shall be exercisable until December
31, 1999 (or the next preceding business day
if December 31, 1999 is a holiday) when the
Option shall become and remain exercisable
for 20% of the shares covered thereby. The
Option granted hereby shall become and
remain exercisable for an additional 20% of
the shares covered thereby on December 31,
2000, December 31, 2001, December 31, 2002
and December 31, 2003 (or the next business
day preceding any said December 31st which
is a holiday);
(2) An Optionee may exercise a
portion of the Option from the date that
portion first becomes exercisable until the
Option expires or is otherwise terminated;
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(3) In the case of any fractional
share resulting from any calculation under
the Plan, the shares available for exercise
shall be determined to the nearest lower
number of whole shares.
(b) MAXIMUM VALUE OF STOCK WITH RESPECT TO WHICH
OPTION IS EXERCISABLE FOR FIRST TIME IN ANY
CALENDAR YEAR.
Anything contained herein to the contrary
notwithstanding, to the extent the aggregate fair
market value (determined at the time the option is
granted) of stock with respect to which options are
exercisable for the first time by Optionee during any
one calendar year (under this Plan and all other
incentive stock option plans of Spiegel or any parent
or subsidiary corporation of Spiegel) shall exceed
One Hundred Thousand Dollars ($100,000.00), such
excess options shall be treated as options which are
not incentive stock options as determined under the
Plan.
(c) TRANSFER OF OPTION.
Neither the whole nor any part of this
Option shall be transferable by the Optionee or by
operation of law during the Optionee's lifetime and
at the Optionee's death this Option or any part
thereof shall only be transferable by the Optionee's
will or by the laws of descent and distribution. This
Option may be exercised during the lifetime of the
Optionee only by the Optionee. This Option, and any
and all rights granted to the Optionee hereby, to the
extent not theretofore effectively exercised shall
automatically terminate and expire upon any sale,
transfer or hypothecation or any attempted sale,
transfer or hypothecation of the Option or such
rights, or upon the bankruptcy or insolvency of the
Optionee.
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(d) TERMINATION OF EMPLOYMENT.
This Option may not be exercised after the
termination of the employment of the Optionee with
Spiegel and its "subsidiary corporations" as that
term is defined in the Plan (collectively, the
"Corporation") except as hereinafter provided,
specifically subject, however, to the provisions of
the second sentence of the first paragraph of this
Section 3:
(1) RETIREMENT.
This Option may be exercised within three (3) months
after the Retirement (as hereinafter defined) of the Optionee
and the Option shall be exercisable for all of the shares
covered thereby, notwithstanding the provisions of paragraph
(a)(1) of this Section 3. For purposes of this Option
Agreement, "Retirement" shall mean any termination of
employment with the Corporation occurring after (i) the
completion of ten (10) years of service with the Corporation,
and (ii) the date on which the Optionee's age and years of
service with the Corporation add up to seventy (70).
(2) DISABILITY.
This Option may be exercised within three (3) months
after the termination of the employment of the Optionee by
reason of the Disability (as hereinafter defined) of the
Optionee and the Option shall be exercisable for all of the
shares covered thereby, notwithstanding the provisions of
paragraph (a)(1) of this Section 3. For purposes of this
Option Agreement, the Optionee shall be deemed to have
incurred a "Disability" if a disinterested duly licensed
medical doctor appointed by the Corporation determines that
the Optionee is totally and permanently prevented, as a
result of physical or mental infirmity, injury, or disease,
either occupational or nonoccupational in cause, from
holding the job or position with the Corporation or
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engaging in the employment activity, or a comparable job or
employment activity with the Corporation, which the Optionee
held or customarily engaged in prior to the occurrence of the
disability (provided, however, that disability hereunder shall
not include any disability incurred or resulting from the
Optionee's having engaged in a criminal act or enterprise, or
any disability consisting of or resulting from the Optionee's
chronic alcoholism, addiction to narcotics or an intentionally
self-inflicted injury).
(3) DEATH.
(i) If the Optionee shall die while employed
by the Corporation or within three (3) months after
termination of employment with the Corporation by
reason of Retirement or Disability, the Option
granted hereby to such deceased Optionee shall be
exercisable within one (1) year after the date of the
Optionee's death and the Option shall be exercisable
for all of the shares covered hereby, notwithstanding
the provisions of paragraph (a)(1) of this Section 3.
(ii) If the Optionee shall die within three
(3) months after termination of employment with the
Corporation for a reason other than Retirement or
Disability, the Option granted hereby to such
deceased Optionee shall be exercisable within one (1)
year after the date of the Optionee's death but the
Option may not be exercised for more than the number
of shares, if any, as to which the Option was
exercisable by the Optionee immediately prior to his
death.
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(iii) The legal representative, if any, of
the deceased Optionee's estate, or the appropriate
legatees or distributees of the deceased Optionee's
estate may exercise this Option on behalf of the
Optionee.
(4) INVOLUNTARY TERMINATION OF EMPLOYMENT.
This Option may be exercised within three (3) months
after the Involuntary Termination of Employment (as
hereinafter defined) of the Optionee with the Corporation and
the Option shall be exercisable for all of the shares covered
thereby, notwithstanding the provisions of paragraph (a)(1) of
this Section 3. For purposes of this Option Agreement,
"Involuntary Termination of Employment" shall mean any
termination of the Optionee's employment with the Corporation
by reason of the discharge, firing or other involuntary
termination of the Optionee's employment by action of the
Corporation other than an involuntary termination for cause as
described in subparagraph (6) of this paragraph (d).
(5) VOLUNTARY TERMINATION OF EMPLOYMENT.
This Option may be exercised, if otherwise timely,
within three (3) months after the Voluntary Termination of
Employment (as hereinafter defined) of the Optionee with the
Corporation but the Option may not be exercised for more than
the number of shares, if any, as to which the Option was
exercisable by the Optionee immediately prior to such
termination of employment as determined under the provisions
of paragraph (a)(1) of this Section 3. For purposes of this
Option Agreement, "Voluntary Termination of Employment" shall
mean any voluntary termination of employment with the
Corporation by reason of the Optionee's quitting or otherwise
voluntarily leaving the Corporation's employ other than a
voluntary termination of employment by reason of Retirement or
a voluntary termination of
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employment constituting a termination for cause as described
in subparagraph (6) of this paragraph (d).
(6) TERMINATION FOR CAUSE.
Anything contained herein to the contrary
notwithstanding, if the termination of the Optionee's
employment with the Corporation is as a result of or caused by
the Optionee's theft or embezzlement from the Corporation, the
violation of a material term or condition of his employment,
the disclosure by the Optionee of confidential information of
the Corporation, conviction of the Optionee of a crime of
moral turpitude, the Optionee's stealing trade secrets or
intellectual property owned by the Corporation, any act by the
Optionee in competition with the Corporation or any other act,
activity or conduct of the Optionee which in the opinion of
the Board Committee of the Board of Directors of Spiegel is
adverse to the best interests of the Corporation, then this
Option and any and all rights granted to such Optionee
hereunder, to the extent not yet effectively exercised,
shall become null and void effective as of the date
of the occurrence of the event which results in the Optionee
ceasing to be an employee of the Corporation and any purported
exercise of the Option by or on behalf of the Optionee
following such date shall be of no effect.
(e) ACCELERATION.
The Stock Option Committee (the
"Committee"), which administers the Plan, may, in the
case of merger, consolidation, dissolution or
liquidation of Spiegel, accelerate the expiration
date of this Option for any or all of the shares
covered thereby (but still giving the Optionee a
reasonable period of time to exercise the Option with
respect to any portion thereof outstanding
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prior to the accelerated expiration date) and may, in
the case of merger, consolidation, dissolution or
liquidation of Spiegel, or in any other case in which
it feels it is in the Corporation's best interest,
accelerate the date or dates on which this Option or
any part of this Option shall be exercisable for any
or all of the shares covered thereby.
(f) RIGHTS AS A STOCKHOLDER.
The Optionee shall have no rights as a
stockholder with respect to any shares covered by
this Option until the date that Spiegel receives
payment in full for the purchase of said shares
pursuant to the effective exercise of this Option. No
adjustment shall be made for dividends or
distributions or other rights for which the record
date is prior to the date such payment is received by
Spiegel, except as provided in Section 7 of the Plan.
Spiegel shall not be required to issue or deliver any
certificate for shares of its Class A Stock purchased
upon the exercise of all or any part of this Option
before (1) the admission of such shares to listing on
any stock exchange on which such stock may then be
listed, or, if applicable, approved for inclusion on
the National Market System of the NASD and (2)
completion of any registration or other qualification
of such shares under any state or federal law or
ruling or regulation of any governmental regulatory
body that Spiegel shall, in its sole discretion,
determine is necessary or advisable.
(g) COMPLIANCE WITH SECURITIES EXCHANGE ACT.
Notwithstanding anything herein to the
contrary, this Option shall always be exercised in
such a manner as to conform to the provisions of Rule
16b-3, or any replacement rule, adopted pursuant to
the provisions of the
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Securities Exchange Act of 1934 as the same now
exists or may, from time to time, be amended.
(h) OPTION SUBJECT TO TERMS OF PLAN.
The exercise of this Option shall be
additionally conditioned and limited as provided in
the Plan.
4. METHOD OF EXERCISE.
Subject to the terms and conditions of this Stock
Option Agreement and the Plan, the Optionee, in order to
exercise the Option, must notify the Committee in writing in a
form acceptable to the Committee to that effect at Spiegel,
Inc., Stock Option Committee, c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Such written notice
must state the election to exercise the Option granted under
this Stock Option Agreement, and specify the number of shares
of Class A Stock to be purchased. Such notice must be
accompanied by cash, or a check payable to Spiegel, Inc. in
the amount of the full purchase price in United States Dollars
for the shares of Class A Stock to be purchased. The Option
shall be considered as having been effectively exercised only
upon the receipt by the Committee of the written notice of the
exercise of the Option and the payment of the full purchase
price for the shares of Class A Stock to be purchased in
accordance with the preceding provisions of this Section 4.
5. GENERAL PROVISIONS.
(a) Spiegel shall make available such number
of shares of Class A Stock as will be sufficient to
satisfy the requirements of this Option Agreement,
shall pay any original issue and transfer taxes with
respect to the issue and transfer of shares pursuant
hereto and all other fees and expenses
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necessarily incurred by Spiegel in connection
herewith, and will from time to time use its best
efforts to comply with all laws and regulations
which, in the opinion of independent counsel for
Spiegel shall be applicable thereto.
(b) This Option Agreement shall be subject
to such amendment and modification from time to time
as the Committee shall deem necessary to comply with
applicable law or regulation.
(c) The Optionee, in executing this Stock
Option Agreement, acknowledges that he has received
from the Committee a copy of the provisions of the
Plan and the prospectus describing the Option granted
hereby and the Class A Stock covered by the Option.
IN WITNESS THEREOF, Spiegel, Inc. and the Optionee have cause this
Option Agreement as first numbered above to be duly executed, all on the day and
year first above written.
SPIEGEL, INC.
By:
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Chairman of the Spiegel, Inc.
Stock Option Committee
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Optionee
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