-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, P4XN6j8YzhC7JKTXBNno6ABp+yVjI585O1tZIBaInPtP/XVDZ1tqdLSif3oY49e0 SE38Rqb/S8vAcu+8kPZNSQ== 0000276641-03-000032.txt : 20030307 0000276641-03-000032.hdr.sgml : 20030307 20030307163214 ACCESSION NUMBER: 0000276641-03-000032 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20030307 ITEM INFORMATION: Other events FILED AS OF DATE: 20030307 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SPIEGEL INC CENTRAL INDEX KEY: 0000276641 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 362593917 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-16126 FILM NUMBER: 03596533 BUSINESS ADDRESS: STREET 1: 3500 LACEY RD CITY: DOWNERS GROVE STATE: IL ZIP: 60515-5432 BUSINESS PHONE: 7089868800 MAIL ADDRESS: STREET 1: 3500 LACEY ROAD CITY: DOWNERS GROVE STATE: IL ZIP: 60515-5432 8-K 1 spiegel8k030703.txt FORM 8-K FOR SPIEGEL, INC. UNITED STATES SECURITIES AND EXCHANGE COMMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15d of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) : March 7, 2003 SPIEGEL, INC. (Exact name of registrant as specified in its charter) Delaware 0-16126 36-2593917 (State of (Commission file (I.R.S. Employer number) Identification No.) 3500 Lacey Road Downers Grove, IL 60515-5432 (Address of principal executive offices) (Zip Code) (630) 986-8800 (Registrant's telephone number, including area code) No Change (Former name or Former address, if changed since last report) - ---------------------------------------------------------------------------- Item 5. Other Events On March 7, 2003, the Registrant issued the press release attached hereto as Exhibit 99 and incorporated herein by reference. In addition attached as Exhibit 10.1 and Exhibit 10.2, respectively, is the Consent and Stipulation entered into with the Securities and Exchange Commission together with the proposed Partial Final Judgment and Order of Permanent Injunction and Other Equitable Relief. Item 7. Exhibits. (c) Exhibits Exhibit 99 Press release dated March 7, 2003 Exhibit 10.1 Consent and Stipulation of Defendant Spiegel, Inc. dated March 6, 2003 Exhibit 10.2 Proposed Partial Final Judgment and Order of Permanent Injunction and Other Equitable Relief - ---------------------------------------------------------------------------- SIGNATURES Pursuant to the requirements of the Securities Exhchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. SPIEGEL, INC. (Registrant) Dated: March 7, 2003 By: /s/ James M. Brewster ------------------------- James M. Brewster Senior Vice President and Chief Financial Officer (Principal Accounting and Financial Officer) - ---------------------------------------------------------------------------- EXHIBIT INDEX Exhibit No. 99 Spiegel, Inc. press release dated March 7, 2003 10.1 Consent and Stipulation of Defendant Spiegel, Inc. dated March 6, 2003 10.2 Proposed Partial Final Judgment and Order of Permanent Injunction and Other Equitable Relief EX-99 4 secinvestrel030703.txt EXHIBIT 99 TO SPIEGEL, INC. FORM 8-K EXHIBIT 99 Spiegel, Inc. Enters Into a Consent and Stipulation Agreement with the SEC DOWNERS GROVE, Ill. - March 7, 2003 - Spiegel, Inc. today reported that, as previously announced, the staff of the Securities and Exchange Commission (the "SEC") has commenced an investigation into compliance by Spiegel, Inc. (the Company) with the federal securities laws. Today the SEC commenced a civil proceeding in federal court in Chicago alleging, among other things, that the Company's public disclosures violated Sections 10(b) and 13(a) of the Securities Exchange Act of 1934. Simultaneous with the filing of the SEC's complaint, the Company announced that it has entered into a Consent and Stipulation with the SEC resolving, in part, the claims asserted in the SEC action. A copy of the Consent and Stipulation is attached as an exhibit to the Form 8-K filed today with the SEC by the Company. Solely for purposes of resolving the SEC action, Spiegel, Inc. consented to the entry of the proposed Partial Final Judgment and Order of Permanent Injunction and Other Equitable Relief annexed to the Consent and Stipulation. As part of the settlement, the Company neither admitted nor denied the allegations of the SEC's complaint. Under the terms of the Consent and Stipulation, the Company agreed, among other things, to the entry of a permanent injunction enjoining any conduct in violation of Sections 10(b) and 13(a) of the Securities Exchange Act of 1934 and various rules promulgated thereunder. The Company also consented to the appointment of an independent examiner by the court to review its financial records since January 1, 2000, and to provide a report to the court and other parties regarding its financial condition and financial accounting. The SEC reserved its right to petition the court to require the Company to pay disgorgement, prejudgment interest and civil penalties, or to impose other equitable relief. The Company stated that it is cooperating fully with the ongoing SEC investigation. About The Company The Spiegel Group is a leading international specialty retailer marketing fashionable apparel and home furnishings to customers through catalogs, 560 specialty retail and outlet stores, and e-commerce sites, including eddiebauer.com, newport-news.com and spiegel.com. The Spiegel Group's businesses include Eddie Bauer, Newport News, Spiegel Catalog and First Consumers National Bank. The company's Class A Non-Voting Common Stock trades on the over-the-counter market ("Pink Sheets") under the ticker symbol: SPGLA. Investor relations information is available on The Spiegel Group Web site at http://www.thespiegelgroup.com. EX-10 5 consent030703.txt EXHIBITI 10.1 TO SPIEGEL, INC. FORM 8-K EXHIBIT 10.1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Plaintiff, CIVIL v. ACTION FILE NO. SPIEGEL, INC., Defendant. CONSENT AND STIPULATION OF DEFENDANT SPIEGEL, INC. A. Defendant Spiegel, Inc. ("Defendant Spiegel"): 1. Acknowledges receipt of the Complaint for Permanent Injunction and Other Equitable Relief ("Complaint") filed by Plaintiff U.S. Securities and Exchange Commission ("Plaintiff Commission") in this action, enters a general appearance, admits the jurisdiction of the Court over it and over the subject matter hereof, and waives the filing of an Answer; 2. Solely for purposes of this proceeding or any other proceeding to which the Commission is a party, and without admitting or denying the allegations of the Complaint, except as to jurisdiction, which is admitted, hereby voluntarily consents to the entry of the attached Partial Final Judgment and Order of Permanent Injunction and Other Equitable Relief ("Partial Final Judgment") against it without further notice; 3. Enters into this Consent and Stipulation ("Consent") voluntarily and acknowledges that no threats, offers, promises or inducements of any kind whatsoever have been made by the Plaintiff Commission or anyone else in consideration of this Consent; 4. Waives any right it may have to appeal from the Partial Final Judgment, while reserving its right to contest any additional remedies sought by the Plaintiff Commission pursuant to Paragraph G hereof, and to appeal from any adverse decision concerning any such request for additional remedies; 5. Understands that the terms of the Partial Final Judgment are enforceable through contempt proceedings; 6. Agrees that it will not oppose enforcement of the Partial Final Judgment on the ground that it fails to comply with Rule 65(d) of the Federal Rules of Civil Procedure and waives any objections based thereon; 7. Agrees that it does not and will not oppose the validity of the attached Partial Final Judgment on any jurisdictional ground; 8. Waives service upon it of the Partial Final Judgment and agrees that the entry of the Partial Final Judgment by the Court and filing with the Clerk in the United States District Court for the Northern District of Illinois will constitute notice to it of the terms and conditions of such Partial Final Judgment; and 9. Agrees that the Court shall retain jurisdiction of this matter for all purposes. B. Plaintiff Commission and Defendant Spiegel agree that this Consent shall be incorporated by reference into the Partial Final Judgment with the same force and effect as if fully set forth therein. C. Plaintiff Commission and Defendant Spiegel waive the entry of findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. D. Understands and agrees to comply with the Plaintiff Commission's policy "not to permit a defendant or respondent to consent to a judgment or order that imposes a sanction while denying the allegations in the complaint or order for proceedings." (17 C.F.R. ss202.5(e)). In compliance with this policy, Defendant Spiegel agrees not to take any action or to make or permit to be made any public statement denying, directly or indirectly, any allegation in the Complaint or creating the impression that the Complaint is without factual basis. If Defendant Spiegel breaches this agreement, the Plaintiff Commission may petition the Court to vacate the Partial Final Judgment. Nothing in this provision affects Defendant Spiegel's testimonial obligations or right to take legal positions in litigation in which the Plaintiff Commission is not a party. E. Acknowledges and agrees that this proceeding and its Consent are for the purposes of resolving this proceeding only,in conformity with the provisions of 17 C.F.R. 202.5(f), and do not resolve, affect, or preclude any other proceedings that may be brought against it. Consistent with the provisions of 17 C.F.R. 202.5(f), Defendant Spiegel waives any claim of Double Jeopardy based upon the settlement of this proceeding, including the imposition of any remedy or civil penalty herein. Defendant Spiegel acknowledges that the Court's entry of a permanent injunction may have collateral consequences under federal or state law and the rules and regulations of self-regulatory organizations, licensing boards, and other regulatory organizations. Such collateral consequences include, but are not limited to, a statutory disqualification with respect to membership or participation in, or association with a member of, a self-regulatory organization. This statutory disqualification has consequences that are separate from any sanction imposed in an administrative proceeding. F. Waives any rights under the Equal Access to Justice Act, the Small Business Regulatory Enforcement Fairness Act of 1996 or any other provision of law to pursue reimbursement of attorney's fees or other fees, expenses or costs expended by Defendant Spiegel to defend against this action. For these purposes,Defendant Spiegel agrees that it is not the prevailing party in this action since the parties have reached a good faith settlement. G. Agrees that the Court will determine, in a separate hearing, whether it is appropriate to require Defendant Spiegel to pay disgorgement, prejudgment interests and civil penalties, and determine whether it is appropriate to order other equitable relief against Defendant Spiegel. At that hearing, Defendant Spiegel will be precluded from denying that it engaged in the violations of the federal securities laws alleged in the Complaint. H. Agrees that Stephen J. Crimmins, an attorney with Pepper Hamilton, LLP in Washington, DC, shall serve as an Independent Examiner. The Independent Examiner's mandate will be to protect the interests of the minority shareholders of Defendant Spiegel to the extent permitted by law. In furtherance of this mandate, the Independent Examiner shall review Defendant Spiegel's financial records for the period from January 1, 2000 to date, and shall provide the Court and the parties with a written report within 120 days. The written report shall discuss Defendant Spiegel's financial condition and identify any material accounting irregularities. Until the resolution of this matter or further order of the Court, the Independent Examiner may recommend interim steps, to be approved and ordered by the Court, for the protection of the minority shareholders pending the resolution of this matter. I. In furtherance of the Independent Examiner's mandate, Defendant Spiegel: 1. Agrees to provide the Independent Examiner with full access to all of Spiegel's non-privileged corporate records; 2. Agrees to require all Spiegel officers, directors, employees and agents to cooperate fully with the Independent Examiner and to respond to any inquiries or questions by the Independent Examiner; 3. Agrees that the Independent Examiner shall have the authority to engage in discovery consistent with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Northern District of Illinois, concerning any subject matter relating to the Independent Examiner's mandate; 4. Agrees to provide the Independent Examiner with reasonable compensation and expense reimbursement in amounts commensurate with the services performed by the Independent Examiner and Defendant Spiegel agrees to be liable for the compensation of the Independent Examiner. Defendant Spiegel shall establish an escrow account, initially funded with $500,000, and will continue to provide additional funds to the escrow account as necessary. The Independent Examiner shall apply to the Court for such compensation and expense reimbursement monthly and such amounts shall be drawn from the escrow account; and 5. Agrees that the Independent Examiner has the right, subject to the Court's approval, to retain legal, financial and other experts including, but not limited to, the retention of legal counsel and forensic accountants, to assist the Independent Examiner in performing his or her duties and agrees that Spiegel will be liable for the reasonable compensation of such experts. J. Agrees that Plaintiff Commission and the Independent Examiner may engage in expedited discovery and responses to discovery requests shall be produced within five (5) business days after service; K. Agrees that Plaintiff Commission and the Independent Examiner shall have the right to petition the Court for immediate relief if Plaintiff Commission and/or the Independent Examiner deem that any of Defendant Spiegel's ongoing activities are not consistent with the company's duties to its minority shareholders; and L. Agrees that Plaintiff Commission may present the Partial Final Judgment to the Court for signature and entry without further notice. M. This Consent and Stipulation and the factual allegations of the Complaint shall not be binding on or relied upon by anyone other than the parties hereto. /s/ William C. Kosturos - -------------------------------- On behalf of Spiegel, Inc. Dated: March 6, 2003 Sworn before me this 6th day of March, 2003 /s/ Noreen P. Pratt - -------------------------------- NOTARY PUBLIC My Commission expires: August 6, 2005 - ------------------------ Amy E. Gibson Lum Dated: , 2003 An Attorney for Plaintiff Securities and Exchange Commission 175 W. Jackson Boulevard, Suite 900 Chicago, Illinois 60604 Telephone: (312) 353-7390 EX-10 6 propfinaljudg030703.txt EXHIBIT 10.2 TO SPIEGEL, INC. FORM 8-K EXHIBIT 10.2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Plaintiff, CIVIL ACTION v. FILE NO. SPIEGEL, INC., Defendant. PARTIAL FINAL JUDGMENT AND ORDER OF PERMANENT INJUNCTION AND OTHER EQUITABLE RELIEF Plaintiff Securities and Exchange Commission ("Plaintiff Commission"), having filed a Complaint for Permanent Injunction and Other Equitable Relief ("Complaint") in this matter and Defendant Spiegel, Inc. ("Defendant Spiegel") having filed its Consent and Stipulation (attached as Exhibit 1, and incorporated herein), acknowledges receipt of the Complaint and admits the jurisdiction of this Court over it and over the subject matter thereof, and without admitting or denying the allegations of the Complaint, except as to jurisdiction, and without trial, argument or adjudication of any facts or law herein, consents to the entry of this Partial Final Judgment and Order of Permanent Injunction and Other Equitable Relief ("Partial Final Judgment"). Plaintiff Commission and Defendant Spiegel have each waived the entry of findings of fact and conclusions of law, as provided by Rule 52 of the Federal Rules of Civil Procedure. This Court having jurisdiction over the parties and the subject matter hereof, and being fully advised in the premises: I. IT IS ORDERED, ADJUDGED, AND DECREED that Defendant Spiegel, and persons at anytime acting as its officers, servants, employees, and those persons in active concert or participation with any of the foregoing who receive actual notice of this Partial Final Judgment, by personal service or otherwise, and each of them, be and hereby are permanently restrained and enjoined from, directly and/or indirectly, in connection with the purchase or sale of any security, by the use of any means or instrumentality of interstate commerce and/or of the mails, or of any facility of any national securities exchange, among other things, making any untrue statement of material fact or omitting to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or any conduct of a similar purport and object, in violation of Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act") [15 U.S.C. ss78j(b)] and Rule 10b-5 [17 C.F.R. ss240.10b-5] thereunder. II. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendant Spiegel, and persons at any time acting as its officers, servants, employees, and those persons in active concert or participation with any of the foregoing who receive actual notice of this Partial Final Judgment, by personal service or otherwise, and each of them, be and hereby are permanently restrained and enjoined from, directly and/or indirectly, violating Section 13(a) of the Exchange Act [15 U.S.C. ss 78m(a)] and Rules 13a-1 and 13a-13 thereunder [17 C.F.R. ss ss 240.13a-1 and 240.15d-13] which, among other things, require the timely filing with Plaintiff Commission of financial statements in annual reports on Form 10-K and quarterly reports on Form 10-Q in accordance with such rules and regulations that Plaintiff Commission has prescribed as necessary and appropriate in the public interest and for the protection of investors. III. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that after the entry of this Partial Final Judgment, this Court will determine and order, in a separate hearing, whether it is appropriate to require Defendant Spiegel to pay disgorgement, prejudgment interest and civil penalties, and determine whether it is appropriate to order other equitable relief against Defendant Spiegel. At that hearing, Defendant Spiegel will be precluded from denying that it violated the federal securities laws alleged in the Complaint. IV. APPOINTMENT OF AN INDEPENDENT EXAMINER IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, by consent of Plaintiff Commission and Defendant Spiegel, Stephen J. Crimmins, an attorney with Pepper Hamilton, LLP in Washington, DC, shall serve as an Independent Examiner. The Independent Examiner's mandate will be to protect the interests of Defendant Spiegel's minority shareholders to the extent permitted by law. In furtherance of this mandate, the Independent Examiner shall review Defendant Spiegel's financial records for the period from January 1, 2000 to date, and shall provide the Court and the parties with a written report within 120 days. The written report shall discuss Defendant Spiegel's financial condition and identify any material accounting irregularities. Until the resolution of this matter or further order of the Court, the Independent Examiner may recommend interim steps, to be approved and ordered by the Court, for the protection of the minority shareholders pending the resolution of this matter. In furtherance of the Independent Examiner's mandate, Defendant Spiegel shall: 1. Provide the Independent Examiner with full access to all of Defendant Spiegel's non-privileged corporate records; 2. Require all of its officers, directors, employees and agents to cooperate fully with the Independent Examiner and to respond to any inquiries or questions by the Independent Examiner; and 3. Provide the Independent Examiner with reasonable compensation and expense reimbursement in amounts commensurate with the services performed by the Independent Examiner. Defendant Spiegel shall be liable for the compensation of the Independent Examiner. Within seven (7) business days of this Order, Defendant Spiegel shall establish an escrow account, initially funded with $500,000, and will continue to provide additional funds to the escrow account as necessary. The Independent Examiner shall apply to the Court for such compensation and expense reimbursement monthly and such amounts shall be drawn from the escrow account. V. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that: 1. The Independent Examiner shall have the authority to engage in discovery consistent with the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Northern District of Illinois, concerning any subject matter relating to the Independent Examiner's mandate. 2. The Independent Examiner has the right, subject to the Court's approval, to retain legal, financial and other experts including, but not limited to, the retention of legal counsel and forensic accountants, to assist the Independent Examiner in performing his duties. Defendant Spiegel shall be liable for the reasonable compensation of such experts. 3. That Plaintiff Commission and the Independent Examiner may engage in expedited discovery and responses to discovery requests shall be produced within five (5) business days after service. 4. That Plaintiff Commission and the Independent Examiner shall have the right to petition the Court for immediate relief if Plaintiff Commission and/or the Independent Examiner deem that any of Defendant Spiegel's ongoing activities are not consistent with the company's duties to its minority shareholders. VI. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the attached Consent and Stipulation of Defendant Spiegel (Exhibit 1), is hereby incorporated herein with the same force and effect as if fully set forth herein. VII. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Court shall retain jurisdiction of this matter for all purposes, including, among other things: the implementation and enforcement of the terms and conditions of all orders and decrees that may be entered by this Court, and Defendant Spiegel's Consent and Stipulation attached hereto and incorporated herein, or to entertain any suitable application or motion for additional relief within the jurisdiction of this Court. VIII. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there being no just cause for delay, the Clerk of the Court is hereby directed to enter this Partial Final Judgment. ---------------------------- UNITED STATES DISTRICT JUDGE DATED: ----------------- -----END PRIVACY-ENHANCED MESSAGE-----