Exhibit 3(ii)
By-Laws
of
Sears, Roebuck and Co.
as amended to
February 7, 1995
Article I
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of the shareholders
shall be held at such place within or without the State of New York as
shall be fixed by the Board of Directors from time to time.
Section 2. Annual Meetings. The annual meeting of the
shareholders for the election of directors and for the transaction of
such other business as may properly be brought before the meeting shall be
held at such time as is specified in the notice of the meeting on
either the second Wednesday in May of each year or on such other date as
may be fixed by the Board of Directors prior to the giving of the notice
of such meeting. The Board of Directors acting by resolution may
postpone and reschedule any previously scheduled annual meeting of
shareholders.
Nominations of persons for election to the Board of Directors of
the Company and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (a)
pursuant to the Company's notice of meeting, (b) by or at the direction of
the Board of Directors or (c) by any shareholder of the Company who
was a shareholder of record at the time of giving of notice provided for
in this By-Law, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in this By-Law.
For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (c) of the foregoing
paragraph of this By-Law, the shareholder must have given timely notice
thereof in writing to the Secretary of the Company. To be timely, a
shareholder's notice shall be delivered to the Secretary at the
principal executive offices of the Company not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date of
the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary date, notice by the shareholder to be
timely must be so delivered not earlier than the 90th day prior to such
annual meeting and not later than the close of business on the later of
the 60th day prior to such annual meeting or the 10th day following the
day on which public
announcement of the date of such meeting is first
made. Such shareholder's notice shall set forth (a) as to each person
whom the shareholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or
is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as to
any other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder
and the beneficial owner, if any, on whose behalf the proposal is made;
(c) as to the shareholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i) the name and
address of such shareholder, as they appear on the Company's books, and of
such beneficial owner and (ii) the class and number of shares of the
Company which are owned beneficially and of record by such shareholder
and such beneficial owner.
Notwithstanding anything in the second sentence of the preceding
paragraph to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Company is increased and
there is no public announcement naming all of the nominees for Director or
specifying the size of the increased Board of Directors made by the
Company at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a shareholder's notice required by this By-Law
shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be delivered to
the Secretary at the principal executive offices of the Company not
later than the close of business on the 10th day following the day on
which such public announcement is first made by the Company.
Only such persons who are nominated in accordance with the
procedures set forth in these By-Laws shall be eligible to serve as
directors and only such business shall be conducted at an annual meeting
of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-Law. The chairman
of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was
made in accordance with the procedures set forth in this By-Law and, if
any proposed nomination or business is not in compliance with this By-
Law, to declare that such defective proposal shall be disregarded.
For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Company with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this By-Law, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this By-Law. Nothing in this By-Law shall be
deemed to affect any rights of shareholders to request inclusion of
proposals in the Company's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
Section 3. Special Meetings. Special meetings of the
shareholders for any purpose or purposes shall be called to be held at
any time upon the request of the Chairman of the Board of Directors, the
President or a majority of the members of the Board of Directors or of
the Executive Committee then in office. Business transacted at all
special meetings shall be confined to the specific purpose or purposes
of the persons authorized to request such special meeting as set forth
in this Section 3 and only such purpose or purposes shall be set forth
in the notice of such meeting. The Board of Directors acting by
resolution may postpone and reschedule any previously scheduled special
meeting of shareholders.
Nominations of persons for election to the Board of Directors may be
made at a special meeting of shareholders at which directors are to
be elected (a) pursuant to the Company's notice of meeting (b) by or at
the direction of the Board of Directors or (c) by any shareholder of the
Company who is a shareholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this
By-Law. Nominations by shareholders of persons for election to the
Board of Directors may be made at such a special meeting of shareholders
if the shareholder's notice required by the third paragraph of Section 2
of Article I of these By-Laws shall be delivered to the Secretary at the
principal executive offices of the Company not earlier than the 90th day
prior to such special meeting and not later than the close of business
on the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
Only such persons who are nominated in accordance with the
procedures set forth in these By-Laws shall be eligible to serve as
directors and only such business shall be conducted at a special meeting
of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-Law. The chairman
of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was
made in accordance with the procedures set forth in this By-Law and, if
any proposed nomination or business is not in compliance with this By-
Law, to declare that such defective proposal shall be disregarded.
Notwithstanding the foregoing provisions of this By-Law, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this By-Law. Nothing in this By-Law shall be
deemed to affect any rights of shareholders to request inclusion of
proposals in the Company's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
Section 4. Notice of Meetings. Written notice of the time,
place, and purpose or purposes of each annual and special meeting of
shareholders shall be signed by the Secretary and served by mail upon
each shareholder of record entitled to vote at such meeting not less
than ten nor more than fifty days before the date of the meeting.
Notice of an annual or special meeting of shareholders shall be deemed
to be served when deposited in the United States mail, postage prepaid,
addressed to each shareholder at his address as it appears on the stock
records of the Company or at such other address as he may have filed
with the Secretary of the Company for such purpose.
Section 5. Quorum. At any meeting of the shareholders, the
holders of record of one-third of the total number of shares of the
Company entitled to vote, present in person or represented by proxy,
shall constitute a quorum for the purpose of transacting business.
Section 6. Organization and Adjournment. The Chairman of the
Board of Directors or in the Chairman's absence, the President, or, if
both of such officers are absent, an officer designated by the Executive
Committee, shall act as chairman of the meeting. The Secretary, or in
the Secretary's absence an Assistant Secretary, or if neither the
Secretary nor any Assistant Secretary be present, any person designated by
the chairman of the meeting, shall act as secretary of the meeting. Any
annual or special meeting of shareholders may be adjourned by the
chairman of the meeting or pursuant to resolution of the Board of
Directors without notice other than by announcement at the meeting. At
any adjourned meeting at which a quorum is present, any business may be
transacted that might have been transacted at the meeting as originally
convened.
Section 7. Voting. At each meeting of the shareholders, each
holder of shares entitled to vote at such meeting shall be entitled to
vote in person or by proxy appointed by an instrument in writing signed by
such shareholder or by the shareholder's duly authorized attorney
and, except as provided in the Certificate of Incorporation of the
Company with respect to cumulative voting, shall have one vote for each
share standing in the shareholder's name on the books of the Company
upon each matter submitted to a vote at the meeting. The vote upon the
election of directors shall be by ballot. If a quorum is present at any
meeting of shareholders, the vote of the holders of a majority of the
shares cast by the holders of shares entitled to vote on the matter
shall be sufficient for the transaction of any business, except that
directors shall be elected by a plurality of shares cast by the holders of
shares entitled to vote in the election, unless, in either case,
otherwise provided by law or by the Certificate of Incorporation.
Section 8. Inspectors of Election. Prior to each meeting of
shareholders, the Board of Directors shall appoint three Inspectors, who
shall not be directors or officers of the Company or candidates for the
office of director. Such Inspectors shall count and report to the
meeting the votes cast on all matters submitted to a vote at such
meeting. In the case of failure of the Board of Directors to make such
appointments, or in the case of failure of any Inspector so appointed to
act, the chairman of the meeting shall make such appointments or fill
such vacancies; provided, however, that if any shareholder shall demand an
election, such Inspector or Inspectors shall be elected by the votes cast
in person or by proxy of the holders of record of a plurality of
the shares voted at the meeting and the chairman of the meeting shall
conduct such an election. Each Inspector shall be entitled to a
reasonable compensation from the Company for his services. The
Inspectors appointed to act at any meeting of the shareholders, before
entering upon the discharge of their duties, shall be sworn faithfully
to execute the duties of Inspectors at such meeting with strict
impartiality and according to the best of their ability, and the oath so
taken shall be subscribed by them.
Article II
BOARD OF DIRECTORS
Section 1. Number, Qualification and Term of Office. The
business of the Company shall be managed under the direction of a Board of
Directors, each of whom shall be at least 18 years of age. The
number of directors of the Company shall be fixed and may from time to
time be increased or decreased by the Board of Directors, but in no
event shall the number of directors be less than 9 or more than 30.
Section 2. Vacancies. Any vacancies on the Board of Directors
may be filled by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
Section 3. Resignations. Any director may resign at any time by
giving written notice to the Chairman of the Board of Directors, or to
the President, or to the Secretary of the Company. Such resignation
shall take effect on the date of receipt of such notice unless a later
effective date is specified therein. The acceptance of such resignation
by the Board of Directors shall not be necessary to make it effective.
Section 4. Place of Meetings. The Board of Directors may hold
its meetings at such place or places, within or without the State of New
York, as the Board of Directors may from time to time determine or as
may be specified in the notice of any meeting.
Section 5. Annual Meetings. A meeting of the Board of Directors to
be known as the annual meeting of the Board of Directors shall be
held following the meeting of the shareholders at which such Board of
Directors is elected, at such place as shall be fixed by the Board of
Directors, for the purpose of electing the officers of the Company and
the committees of the Board of Directors, and of transacting such other
business as may properly come before the meeting. It shall not be
necessary to give notice of this meeting.
Section 6. Other Meetings. Meetings of the Board of Directors
shall be held on such dates as from time to time may be determined by
the Board of Directors or whenever called upon the direction of the
Chairman of the Board of Directors or of the President or by the
Secretary upon the written request of one-third of the directors in
office, which request shall state the date, place and purpose of such
meeting.
Section 7. Notice of Meetings. Written, telephonic, telegraphic or
facsimile transmission notice of each meeting except the annual
meeting shall be given by the Secretary to each director, by personal
delivery, by telephone, or by regular or express mail, or telegram or
facsimile transmission addressed to the director at his or her usual
business address, or to the address where the director is known to be,
at least three days (excluding Saturdays, Sundays, and holidays) prior
to the meeting in case of notice by regular mail and at least three
hours prior to the meeting in case of notice by personal delivery,
express mail, telephone, telegram, or facsimile transmission. All
notices which are given by regular mail shall be deemed to have been
given when deposited in the United States mail, postage prepaid. Any
director may waive notice of any meeting, and the attendance of a
director at any meeting shall constitute a waiver of notice of such
meeting. Any and all business may be transacted at any meeting and the
purpose thereof need not be specified in the notice or waiver of notice of
such meeting.
Section 8. Organization, Quorum, Written Consents and Meetings by
Telephone or Similar Equipment. Unless the Board of Directors shall by
resolution otherwise provide, the Chairman of the Board of Directors, or
in the Chairman's absence, the President, or, if both of such officers
are absent, a director chosen by a majority of the directors present,
shall act as chairman at meetings of the Board of Directors; and the
Secretary, or in the Secretary's absence an Assistant Secretary, or in
the absence of an Assistant Secretary, such person as may be designated by
the chairman of the meeting, shall act as secretary at such meetings.
A majority of the directors in office at the time (but not less
than one-third of the entire Board of Directors) shall constitute a
quorum necessary for the transaction of business, and, except as
otherwise provided in these By-Laws, the action of a majority of the
directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors. If at any meeting of the Board of
Directors a quorum is not present, a majority of the directors present
may adjourn the meeting from time to time.
Any action required or permitted to be taken by the Board of
Directors or any committee thereof may be taken without a meeting if all
members of the Board of Directors or the committee consent in writing to
the adoption of a resolution authorizing the action. The resolution and
the written consent thereto by the members of the Board of Directors or
committee shall be filed with the minutes of the proceedings of the
Board of Directors or committee.
Any one or more members of the Board of Directors or any committee
thereof may participate in a meeting of such Board of Directors or
committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each
other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 9. Compensation. Each director not an officer of the
Company, or of any subsidiary or affiliated company, may receive such
compensation for his or her services as a director and as a committee
member as shall be fixed from time to time by resolution of the Board of
Directors and shall be reimbursed for expenses of attendance at meetings
of the Board of Directors and of any committee of which he or she is a
member.
Article III
COMMITTEES
Section 1. Creation and Organization. The Board of Directors, at
its annual meeting, or any adjournment thereof, shall, or at any other
meeting may, elect from among its members, by the vote of a majority of
its members, an Audit Committee, a Compensation Committee, an Executive
Committee, a Finance Committee, a Nominating Committee and a Public
Issues Committee, which shall be the standing committees of the Board of
Directors, and such other committees as shall be determined by the Board
of Directors. The Board of Directors also shall designate the chairman of
each such committee.
The Secretary of the Company shall act as secretary of each
committee meeting, or in the Secretary's absence, an Assistant Secretary
shall act as secretary thereof, or in the absence of an Assistant
Secretary, any person as may be designated by the chairman of the
committee shall act as secretary of the meeting and keep the minutes of
such meeting.
The Board of Directors, by the vote of a majority of its members,
may remove the chairman or any member of any committee, and may fill
from among the directors vacancies in any committee caused by the death,
resignation, or removal of any person elected thereto.
Each committee may determine its own rules of procedure,
consistent with these By-Laws. Meetings of any committee may be called
upon direction of the Chairman of the Board of Directors, the President,
or the chairman of the committee. Notice of each meeting shall be given
to each member of the committee, by personal delivery, telephone,
telegram, facsimile transmission, or regular or express mail addressed
to the member at his or her usual business address, or to the address
where the member is known to be, at least three days (excluding
Saturdays, Sundays, and holidays) prior to the meeting in case of notice
by regular mail, and at least three hours prior to the meeting in case
of notice by personal delivery, express mail, telephone, telegram, or
facsimile transmission. All notices which are given by regular mail
shall be deemed to have been given when deposited in the United States
mail, postage prepaid. Notice of meetings of any committee may be
waived by any member of the committee. At meetings of each committee,
the presence of a majority of such committee shall be necessary to
constitute a quorum for the transaction of business, and, if a quorum is
present at any meeting, the action taken by a majority of the members
present shall be the act of the committee. Each committee shall keep a
record of its acts and proceedings, and all action shall be reported to
the Board of Directors at the next meeting of the Board of Directors
following such action. Each committee shall annually consider whether
amendments to the section of Article III of these By-Laws relating to
the composition and function of such committee appear to be in the best
interests of the Company. Each committee shall report on such
recommendations to the Board of Directors at its first regular meeting
each year and each committee except the Nominating Committee shall
report on such recommendations to the Nominating Committee annually no
later than October.
Section 2. Executive Committee. The Executive Committee shall
consist of the Chairman of the Board of Directors and of such number of
other directors, a majority of whom shall not be officers or employees
of the Company or its affiliates, not less than four, as shall from time
to time be prescribed by the Board of Directors.
The Executive Committee, unless otherwise provided by resolution
of the Board of Directors, shall between meetings of the Board of
Directors have all the powers of the Board of Directors and may perform
all of the duties thereof, except that the Executive Committee shall
have no authority as to the following matters: (i) submission to
shareholders of any action that requires shareholders' authorization
under the New York Business Corporation Law; (ii) compensation of
directors; (iii) amendment or repeal of these By-Laws or the adoption of
new By-Laws; (iv) amendment or repeal of any resolution of the Board of
Directors that by its terms may not be so amended or repealed; (v)
action in respect of dividends to shareholders; (vi) election of
officers, directors or members of committees of the Board of Directors.
Any action taken by the Executive Committee shall be subject to revision
or alteration by the Board of Directors, provided that rights or acts of
third parties vested or taken in reliance on such action prior to their
receipt of written notice of any such revision or alteration shall not
be adversely affected by such revision or alteration.
Section 3. Audit Committee. The Audit Committee shall consist of
such number of directors, who shall not be officers or employees of the
Company or any of its affiliates, not less than three, as shall from
time to time be prescribed by the Board of Directors.
The Audit Committee shall review, with management, the Company's
independent public accountants and its internal auditors, upon
completion of the audit, the annual financial statements of the Company,
the independent public accountants' report thereon, the other relevant
financial information to be included in the Company's Annual Report on
Form 10-K and its annual report to shareholders. After such review, the
Committee shall report thereon to the Board of Directors.
The Audit Committee shall: (1) review recommendations made by
the Company's independent public accountants and internal auditors to
the Audit Committee or the Board of Directors with respect to the
accounting methods and the system of internal control used by the
Company, and shall advise the Board of Directors with respect thereto;
(2) examine and make recommendations to the Board of Directors with
respect to the scope of audits conducted by the Company's independent
public accountants and internal auditors; (3) review reports from the
Company's independent public accountants and internal auditors
concerning compliance by management with governmental laws and
regulations and with the Company's policies relating to ethics,
conflicts of interest, perquisites and use of corporate assets.
The Audit Committee shall meet with the Company's independent
public accountants and/or internal auditors without management present
whenever the Audit Committee shall deem it appropriate. The Committee
shall review with the General Counsel of the Company the status of legal
matters that may have a material impact on the Company's financial
statements.
The Audit Committee shall each year make a recommendation, based
on a review of qualifications, to the Board of Directors for the
appointment of independent public accountants to audit the financial
statements of the Company and to perform such other duties as the Board of
Directors may from time to time prescribe. As part of such review of
qualifications, the Audit Committee shall consider management's plans
for engaging the independent public accountants for management advisory
services to determine whether such services could impair the public
accountants' independence.
The Audit Committee shall have the power to conduct or authorize
special projects or investigations which the Committee considers
necessary to discharge its duties and responsibilities. It shall have
the power to retain independent outside counsel, accountants or others
to assist it in the conduct of any investigations and may utilize the
Company's General Counsel and internal auditors for such purpose.
Section 4. Compensation Committee. The Compensation Committee
shall consist of such number of directors, who shall not be officers or
employees of the Company or any of its affiliates, not less than three, as
shall from time to time be prescribed by the Board of Directors. As
authorized by the Board of Directors, the Compensation Committee shall
make recommendations to the Board of Directors with respect to the
compensation of directors and the administration of the salaries,
bonuses, and other compensation to be paid to the officers of the
Company, including the terms and conditions of their employment, shall
review the compensation of the Chief Executive Officer, and shall
administer all stock option and other benefit plans (unless otherwise
specified in plan documents) affecting officers' direct and indirect
remuneration.
Section 5. Finance Committee. The Finance Committee shall
consist of such number of directors, a majority of whom shall not be
employees of the Company or any of its affiliates, not less than three, as
shall from time to time be prescribed by the Board of Directors.
The Finance Committee shall review the financial affairs,
policies, practices and condition of the Company, its subsidiaries, and
related employee benefit plans, as appropriate. The Committee shall, on
its own initiative or upon referral from the Board of Directors,
investigate, analyze and consider the current and future financial
practices of the Company, its subsidiaries, and related employee benefit
plans, except to the extent within the authority of another committee of
the Board of Directors, and report and make such recommendations to the
Board of Directors as deemed appropriate.
From time to time, the Committee shall review areas including but
not limited to the following: Dividend policy and total shareholder
return; financing plans; capital allocation, structure, and markets
access; asset/liability management; and the design, funding and
investment policies of employee benefit plans.
Section 6. Nominating Committee. The Nominating Committee shall
consist of such number of directors, who shall not be officers or
employees of the Company or any of its affiliates, not less than three, as
shall from time to time be prescribed by the Board of Directors.
The Nominating Committee shall review and recommend to the Board
of Directors prior to the annual shareholders' meeting each year: (a)
the appropriate size and composition of the Board of Directors; (b) a
proxy statement and form of proxy; (c) policies and practices on
shareholder voting; (d) plans for the annual shareholders' meeting; and
(e) nominees: (i) for election to the Board of Directors for whom the
Company should solicit proxies; (ii) to serve as proxies in connection
with the annual shareholders' meeting; (iii) for election to all
committees of the Board of Directors; and (iv) for election or approval as
Corporate Officers and Chairmen and Chief Executive Officers and at
least five others of the most senior officers of each of the Company's
Business Groups.
The Nominating Committee shall annually assess the performance of
the Board and review the management organization of the Company and
succession plans for the Chairmen and Chief Executive Officers of the
Company and its Business Groups, including consultation with the
Chairman of the Board of Directors regarding the persons he or she
considers qualified to fill any vacancy that may occur in such
positions. In the event of any such vacancy, the Nominating Committee
shall recommend to the Board of Directors a nominee to fill such
vacancy.
Section 7. Public Issues Committee. The Public Issues Committee
shall consist of such number of directors, not less than three, as shall
from time to time be prescribed by the Board of Directors. A majority
of the members shall not be officers or employees of the Company or any of
its affiliates.
The Public Issues Committee shall concern itself with current
problems and future trends in respect to public issues that may affect
the Company and shall review and discuss such issues with the
appropriate representatives of management of the Company and provide
guidance as to the Company's policies and positions with respect
thereto.
Article IV
OFFICERS
Section 1. Officers. The Board of Directors shall, at its annual
meeting, and may at any other meeting, or any adjournment thereof, elect
from among its members a Chairman of the Board of Directors and a
President. The Board of Directors may also elect at such meeting one or
more Vice Chairmen and one or more Vice Presidents, who may have special
designations, and shall elect at such meeting a Treasurer, a Controller
and a Secretary, who also may have special designations.
The Board of Directors may elect or appoint such other officers
and agents as it shall deem necessary, or as the business of the Company
may require, each of whom shall hold office for such period, have such
authority and perform such duties as the Board of Directors may
prescribe from time to time.
Any two or more offices, except the offices of Chairman of the
Board of Directors and Secretary, the offices of President and Secretary
and the offices of Treasurer and Controller, may be held by the same
person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity.
Section 2. Term of Office. Each officer elected by the Board of
Directors shall hold office until the next annual meeting of the Board
of Directors and until his or her successor is elected, or until such
earlier date as shall be prescribed by the Board of Directors at the
time of his or her election. Any officer may be removed at any time,
with or without cause, by the vote of a majority of the members of the
Board of Directors.
Section 3. Vacancies. A vacancy in any office caused by the
death, resignation, retirement, or removal of the person elected
thereto, or by any other cause, may be filled for the unexpired portion of
the term by election of the Board of Directors at any meeting. In
case of the absence or disability, or refusal to act of any officer of
the Company, or for any other reason that the Board of Directors shall
deem sufficient, the Board of Directors may delegate, for the time
being, the powers and duties, or any of them, of such officer to any
other officer or to any director, consistent with the limitations in
Section 1.
Section 4. The Chairman of the Board of Directors. The Chairman of
the Board of Directors shall be the chief executive officer of the
Company and shall have general direction over the affairs of the
Company, subject to the control and direction of the Board of Directors.
The Chairman shall, when present, preside as chairman at all meetings of
the shareholders and of the Board of Directors. The Chairman may call
meetings of the shareholders and of the Board of Directors and of the
committees whenever he or she deems it necessary. The Chairman shall,
in the absence or incapacity of the President, perform all duties and
functions and exercise all the powers of the President. The Chairman
shall have such other powers and perform such other duties as from time to
time may be prescribed by the Board of Directors.
Section 5. The President. The President shall have general
direction over the day-to-day business of the Company, subject to the
control and direction of the Chairman of the Board of Directors. The
President shall keep the Chairman of the Board of Directors fully
informed concerning the activities of the Company under his supervision.
The President shall, in the absence or incapacity of the Chairman of the
Board of Directors, perform all duties and functions and exercise all
the powers of the Chairman of the Board of Directors. In the absence of
the Chairman of the Board of Directors, the President shall preside at
meetings of the shareholders and of the Board of Directors. The
President shall have such other powers and perform such other duties as
are incident to the office of President and as from time to time may be
prescribed by the Board of Directors.
Section 6. Vice Chairmen and Vice Presidents. Each Vice Chairman
and each Vice President shall have such powers and perform such duties
as from time to time may be assigned to him or her by the Board of
Directors or be delegated to him or her by the Chairman of the Board of
Directors or by the President. The Board of Directors may assign to any
Vice Chairman or Vice President general supervision and charge over any
territorial or functional division of the business and affairs of the
Company. In the absence or incapacity of the Chairman of the Board of
Directors and the President, the powers, duties, and functions of the
President shall be temporarily performed and exercised by such one of
the Vice Chairmen or Vice Presidents as shall be designated by the Board
of Directors or, if not designated by the Board of Directors, by the
Executive Committee or, if not designated by the Executive Committee, by
the President.
Section 7. Treasurer. The Treasurer shall have responsibility
for the custody and safekeeping of all funds and securities of the
Company; shall make disbursements of Company funds upon appropriate
vouchers and supervise the handling of balances and maintain proper
relationships with banks; shall keep full and accurate accounts of the
transactions of his or her office in books belonging to the Company and
render to the Board of Directors, whenever it may require, an account of
his or her transactions as Treasurer; and in general shall have such
other powers and perform such other duties as are incident to the office
of Treasurer and as from time to time may be prescribed by the Board of
Directors, the Chairman of the Board of Directors, or the President.
Section 8. Controller. The Controller shall have general charge,
control, and supervision over the accounting and auditing affairs of the
Company. The Controller or such persons as the Controller shall
designate shall have responsibility for the custody and safekeeping of
all permanent records and papers of the Company. The Controller shall
have responsibility for the preparation and maintenance of the books of
account and of the accounting records and papers of the Company; shall
supervise the preparation of all financial statements and reports on the
operation and condition of the business; shall have responsibility for
the establishment of financial procedures, records, and forms used by
the Company; shall have responsibility for the filing of all financial
reports and returns, except tax returns, required by law; shall render
to the Chairman of the Board of Directors, the President, or the Board
of Directors, whenever they may require, an account of the Controller's
transactions; and in general shall have such other powers and perform
such other duties as are incident to the office of Controller and as
from time to time may be prescribed by the Board of Directors, the
Chairman of the Board of Directors, or the President.
Section 9. Secretary. The Secretary shall attend and keep the
minutes of meetings of the shareholders, of the Board of Directors, and of
all committees of the Company in books of the Company provided for
that purpose; may sign with the Chairman of the Board of Directors, the
President, any Vice Chairman or any Vice President, or the Manager of
any Department, in the name of the Company, contracts and other
instruments authorized by the Board of Directors or by the Executive
Committee, and in proper cases shall affix the corporate seal thereto;
shall see that notices are given and corporate records and reports are
properly kept and filed by the Company as required by these By-Laws or
as required by law; and in general shall have such other powers and
perform such other duties as are incident to the office of Secretary and
as from time to time may be prescribed by the Board of Directors, the
Chairman of the Board of Directors, or the President.
Section 10. Compensation. The salaries and other compensation of
all officers elected by the Board of Directors shall be fixed from time to
time by or under the direction of the Board of Directors.
Article V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification. Any person (hereinafter called an
"Indemnitee") made, or threatened to be made, a party to, or who is
otherwise involved in, any action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that
such Indemnitee, or his or her testator or intestate, is or was a
director or officer of the Company, or, while a director or officer of
the Company and at the request of the Company, is or was serving another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise in any capacity, shall be indemnified by the Company to
the full extent permitted by applicable law, against judgments, fines,
amounts paid in settlement and all expenses, including attorneys' fees,
actually incurred as a result of such action, suit or proceeding, or any
appeal therein.
Without limitation of the foregoing, the Company shall be deemed
to have requested an Indemnitee to serve an employee benefit plan where
the performance by such person of his or her duties to the Company also
imposes duties on, or otherwise involves services by, such person to the
plan or participants or beneficiaries of the plan. Excise taxes
assessed on an Indemnitee with respect to an employee benefit plan
pursuant to applicable law shall be considered fines.
Section 2. Partial Indemnity. If an Indemnitee is entitled under
any provision of this Article V to indemnification by the Company for
some or a portion of the amounts indemnified against, but not for the
total amount thereof, the Company shall nevertheless indemnify such
Indemnitee for the portion thereof to which such Indemnitee is entitled.
Section 3. Advancement of Expenses. The Company shall, from time
to time, reimburse or advance to any Indemnitee the funds necessary for
payment of expenses incurred in connection with any action, suit or
proceeding referred to in Section 1, upon receipt of a written
undertaking by or on behalf of such Indemnitee to repay such amounts if
and to the extent that such repayment is required pursuant to applicable
law.
Section 4. Corporate Action; Judicial Review. Upon receipt of a
request to be indemnified, or for the reimbursement or advancement of
expenses, the Company shall promptly proceed in good faith to take all
actions necessary to a determination of whether or not the Indemnitee is
entitled to such payment pursuant to this Article V. If such a request is
not paid in full by the Company within thirty days after receipt of a
written claim therefor, the Indemnitee may at any time thereafter bring
suit against the Company to recover the unpaid amount of the claim and, if
successful in whole or in part, the Indemnitee also shall be entitled to
be reimbursed by the Company for the expenses actually incurred,
including attorneys' fees, of prosecuting such claim. Neither a
determination that such payments are improper under the circumstances,
nor the failure of the Company (including its Board of Directors,
Independent Counsel (as hereinafter defined) or shareholders) to have
made a determination, prior to the commencement of such action, that
such payments are proper under the circumstances, shall be a defense to
the action or shall create a presumption that the Indemnitee is not
entitled to the payment requested. Notwithstanding any other provision of
this Article V, in any action hereunder by the Indemnitee against the
Company to secure indemnification or reimbursement or advancement of
expenses, to the extent permitted by applicable law, the Company shall
bear the burden of proof that the Indemnitee is not entitled to such
payments.
Section 5. Contract Right. The right to indemnification and to
the reimbursement or advancement of expenses pursuant to this Article V
(a) is a contract right provided in consideration of services to the
Company, with respect to which an Indemnitee may bring suit as if the
provisions of this Article V were set forth in a separate written
contract between the Company and such Indemnitee, (b) is intended to be
retroactive and shall, to the extent permitted by applicable law, be
available with respect to events occurring prior to the adoption hereof,
and (c) shall continue to exist after any future rescission or
restrictive modification hereof with respect to any alleged cause of
action that accrues, or any other incident or matter that occurs, prior to
such rescission or modification. It is the intent of the Company to
irrevocably establish hereby the right of Indemnitees to all
indemnification that is not prohibited by applicable law.
Section 6. Change in Control. If there has been a Change in
Control of the Company (as hereinafter defined) within five years prior to
any request for indemnification or reimbursement or advancement of
expenses pursuant to this Article V, then with respect to all matters
thereafter arising concerning the rights of Indemnitees to payments
pursuant to this Article V or under any other agreement not inconsistent
with this Article V now or hereafter in effect, the Company shall seek
legal advice as specified below only from Independent Counsel (as
hereinafter defined) selected by the Indemnitee and approved by the
Company (which approval shall not be unreasonably withheld). Such
Independent Counsel shall determine whether and to what extent the
Indemnitee would be permitted to be indemnified under applicable law,
which determination shall include an opinion as to whether any requisite
standard of conduct under applicable law has been met, and shall render a
written opinion to the Company and the Indemnitee to such effect. To the
extent permitted by applicable law, the Company shall be required by this
Section 6 to authorize indemnification to the extent such opinion
of Independent Counsel indicates that indemnification is permitted under
applicable law; provided, however, that nothing in this Section 6 shall be
deemed to abrogate the duties of any director of the Company to
participate in any determination required to be made under applicable
law as to whether such payments shall be made. The Company agrees to
pay the reasonable fees of such Independent Counsel and to indemnify
such counsel fully against any and all expenses, claims, liabilities and
damages arising out of or relating to this Article V or the engagement
of such Independent Counsel pursuant hereto.
A "Change in Control of the Company" shall be deemed to have
occurred if (a) any "person" (as such term is used in Section 13(d) of
the Securities Exchange Act of 1934) is or becomes the beneficial owner
(as defined in Rule 13d-3 under such Act), directly or indirectly, of
securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding voting shares, or (b)
during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the
Company cease for any reason to constitute at least a majority thereof
unless the election of each director who was not a director at the
beginning of the period was approved by a vote of a least 75% of the
directors then still in office who were directors at the beginning of
the period.
"Independent Counsel" shall refer to an attorney-at-law who at the
time of his or her selection shall not have otherwise performed services
for the Company or the Indemnitee within the previous five years.
Independent Counsel shall not be any person who, under the standards of
professional conduct to which he or she is legally subject, would have a
conflict of interest in representing either the Company or the
Indemnitee in connection with the determination of the Indemnitee's
rights under this Article V; nor shall Independent Counsel be any person
who has been sanctioned or censured for ethical violations of such
standards of professional conduct.
Section 7. Period of Limitations. To the extent such limitation is
permitted by applicable law, no legal action shall be brought and no cause
of action shall be asserted by or in the right of the Company or
any affiliate of the Company against an Indemnitee, Indemnitee's spouse,
heirs, testators, intestates, executors, administrators or personal or
legal representatives after the expiration of three years from the date of
accrual of such cause of action, and any claim or cause of action of the
Company or any affiliate shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such three
year period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
Section 8. Non-exclusivity. The rights of Indemnitees under the
foregoing provisions of this Article V shall be in addition to any other
rights such persons may have under a resolution of the shareholders of
the Company, a resolution of its directors, the Certificate of
Incorporation of the Company as amended or restated from time to time,
the New York Business Corporation Law, the common law, any insurance
policy, any agreement or otherwise. In addition to the foregoing
provisions of this Article V, indemnification and reimbursement and
advancement of expenses may be authorized pursuant to this Article V by a
resolution of the shareholders of the Company, a resolution of its
directors or an agreement providing for such indemnification. The
Company shall not be liable under this Article V to make any payment to an
Indemnitee to the extent that such person has otherwise actually
received payment of the amounts otherwise indemnifiable hereunder.
Section 9. Applicable Law. Any Indemnitee entitled to
indemnification or to the reimbursement or advancement of expenses as a
matter of right pursuant to this Article V may elect, to the extent
permitted by law, to have the right of indemnification (or reimbursement
or advancement of expenses) interpreted on the basis of the applicable
law in effect at the time of the occurrence of the event or events
giving rise to the action, suit or proceeding, or on the basis of the
applicable law in effect at the time indemnification (or reimbursement
or advancement of expenses) is sought.
Article VI
STOCK CERTIFICATES AND TRANSFER OF STOCK
Section 1. Certificates of Stock. Certificates representing
shares of the Company shall be in such form, consistent with law, as
shall be approved by the Board of Directors. They shall be signed by
the Chairman of the Board of Directors or President or a Vice Chairman
or a Vice President, and by the Secretary or Treasurer or by an
Assistant Secretary or Assistant Treasurer, and shall be sealed with the
corporate seal of the Company. Such seal may be an engraved or printed
facsimile, and the signature of such officers of the Company, or any of
them, may be printed facsimiles if such certificates are countersigned
by a Transfer Agent or registered by a Registrar other than the Company
itself or an employee thereof. In case any officer who shall have
signed any such certificate, or whose facsimile signature shall have
been used thereon, shall cease to be such officer before such
certificate shall have been issued by the Company, such certificate may be
issued by the Company with the same effect as if such officer had not
ceased to be such at the date of the issuance of such certificate. The
signature of the Transfer Agent and Registrar on a certificate
representing shares of the Company may also be a printed facsimile when
the same entity acts in the dual capacity.
Section 2. Transfer of Certificated Stock. Certificated shares
of the Company shall be transferred on the books of the Company only
upon surrender of the certificate or certificates therefor to the
Treasurer of the Company, or to any authorized Transfer Agent, properly
endorsed or accompanied by proper assignments duly executed by the
registered holder thereof in person or by his or her attorney duly
authorized in writing; except that with respect to certificates alleged to
have been lost, stolen, or destroyed, a new certificate may be issued
without cancellation of the original certificate, but only upon
production of such evidence of the loss, theft, or destruction of the
original certificate, and upon delivery to the Company of a bond of
indemnity in such amount and upon such terms as the Board of Directors, in
its discretion, may require. Until so transferred on the books of
the Company, the Company shall deem and treat the registered holder of
each certificate for shares as the owner of such shares for all
purposes.
Section 3. Transfer Agent and Registrar; Regulations. The
Company shall maintain one or more transfer offices or agencies, each
under control of a Transfer Agent, where the shares of the Company may
be transferable, and also one or more registry offices or agencies, each
under control of a Registrar, where such shares may be registered, and
no certificate for shares of the Company shall be valid unless
countersigned by such Transfer Agent and registered by such Registrar.
The Board of Directors may make such additional rules and regulations as
it may deem expedient concerning the issue, transfer, and registration
of certificates for shares of the Company.
Section 4. Record Date of Shareholders. The Board of Directors
may from time to time fix in advance a date, not more than fifty nor
less than ten days preceding the date of any meeting of shareholders,
and not more than fifty days prior to the date for the payment of any
dividend, or the date for the allotment of any rights, or the date when
any change or conversion or exchange of shares shall become effective,
or the date for any other action by the shareholders, as a record for
the determination of the shareholders entitled to notice of, and to vote
at, any such meeting and any adjournment thereof, or entitled to receive
payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect of any such change, conversion, or
exchange of shares, or to take any other action, and only such
shareholders as shall be shareholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting and
any adjournment thereof, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such rights, or to take
such other action, as the case may be, notwithstanding any transfer of
any shares on the books of the Company after any such record date so
fixed.
Section 5. Uncertificated Shares. The Board of Directors may in
its discretion authorize the issuance of shares which are not
represented by certificates and provide for the registration and
transfer thereof on the books and records of the Company or any Transfer
Agent or Registrar so designated.
Section 6. Shareholder Records. The names and addresses of the
persons to whom shares are issued, and the number of shares and the
dates of issue and any transfer thereof, whether in certificated or
uncertificated form, shall be entered on records kept for that purpose.
The stock transfer records and the blank stock certificates shall be
kept by the Transfer Agent, or by the Treasurer, or such other officer
as shall be designated by the Board of Directors for that purpose.
Every certificate surrendered for transfer or exchange shall be
cancelled.
Article VII
FISCAL YEAR
The fiscal year of the Company shall begin on January 1 in 1994,
and thereafter shall begin on the day after the Saturday closest to
December 31 in each year, and shall end on the Saturday closest to
December 31 in 1994 and each year thereafter.
Article VIII
SEAL
The corporate seal of the Company shall be circular in form and
shall contain the name of the Company and the words "New York," "1906,"
and "Seal." The Secretary shall have custody of the seal, and a
duplicate of the seal may be kept and used by any Assistant Secretary.
Article IX
AMENDMENTS
These By-Laws may be amended or repealed by the vote of a majority
of the directors present at any meeting at which a quorum is present or by
the vote of the holders of the shares of the Company at the time
entitled to vote in the election of directors at any meeting of the
shareholders at which a quorum is present.