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EXHIBIT 3B
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BY-LAWS
OF KMART CORPORATION
A MICHIGAN CORPORATION
(Inc. Mar. 9, 1916)
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MAY 1993
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I, , Secretary of Kmart Corporation, a Michigan
corporation, hereby certify that the following is a true and complete copy of
the By-Laws of said corporation as amended to the date of this certificate and
now in force.
In witness whereof, I have hereunto set my hand and affixed the seal of the
Corporation at the City of Troy, Michigan, this ______________ day of
_____________ A.D. 19__.
________________________
Secretary
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BY-LAWS
OF KMART CORPORATION
A MICHIGAN CORPORATION
(Inc. Mar. 9, 1916)
ARTICLE I
STOCKHOLDERS' MEETINGS
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders for the
election of directors and for the transaction of any other business authorized
or required to be transacted by the stockholders, shall be held at the
principal office of the Company on the fourth Tuesday in May in each year at
nine o'clock A.M., or at such other place and time as the Board of Directors
may designate. Any annual meeting not held at the time prescribed therefor may
be held at any time thereafter to which said meeting may be adjourned or for
which it may be called.
SECTION 2. SPECIAL STOCKHOLDERS' MEETINGS. Special meetings of stockholders
other than those regulated by statute may be called by the Chairman or Vice
Chairman of the Board, or by the Board of Directors, either by a Director's
resolution or a written instrument signed by a majority of the Directors.
SECTION 3. NOTICE OF MEETINGS. Written notice of the time, place and purposes
of a meeting of stockholders shall be given not less than twenty (20) nor more
than sixty (60) days before
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the date of the meeting, either personally or by mail, to each stockholder of
record entitled to vote at the meeting. If mailed, such notice shall be deemed
to be given when deposited in the United States mail, addressed to the
stockholder at his or her address as it appears on the stock transfer books of
the Company, with postage prepaid.
SECTION 4. QUORUM. At all meetings of stockholders, except where it is
otherwise provided by law, the holders of a majority of the outstanding shares
entitled to vote, being present in person or represented by proxy, shall
constitute a quorum for all purposes.
SECTION 5. INSPECTORS OF ELECTION. Prior to the annual meeting of
stockholders, the Chairman or Vice Chairman of the Board or the President
shall appoint at least two Inspectors of Election to act as inspectors at such
meeting and at any meeting of stockholders which may be held during the ensuing
year. It shall be the duty of Inspectors of Election to receive and classify
all proxies as received, and check same with the record of stockholders
entitled to vote at such meetings, to tabulate votes, and to report to the
chairman of the meeting the total number of shares represented at the meeting
in person or by proxy, and the result of the voting.
SECTION 6. VOTING. At all meetings of stockholders, every stockholder of
record as of the applicable record date shall be entitled to vote, either in
person or by proxy appointed by instrument in writing, subscribed by such
stockholder or by his authorized agent. Each outstanding share of capital
stock is entitled to one vote on each matter submitted to a vote, except as
otherwise provided in the Articles of Incorporation. A vote may be cast either
orally or in writing, at the discretion of the chairman of the meeting.
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AMENDMENTS TO BY-LAWS
12/21/93
ARTICLE I
SECTION 7. ADJOURNMENTS. Any annual or special meeting of stockholders,
whether or not a quorum is present, may be adjourned from time to time by a
majority vote of the shares present in person or by proxy. Unless the Board of
Directors fixes a new record date for the adjourned meeting, it is not
necessary to give notice of the adjourned meeting if the time and place to which
the meeting is adjourned are announced at the meeting at which the adjournment
is taken and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting.
SECTION 8. CONDUCT OF BUSINESS. Only such business shall be conducted at a
meeting of stockholders as is specified in the notice of meeting (or any
supplement thereto) or as may be properly brought before the meeting by or at
the direction of the Board of Directors or by a stockholder entitled to vote at
such meeting. In addition to any other applicable requirements and limitations
(including requirements of the Securities Exchange Act of 1934, as amended, and
rules and regulations thereunder with respect to inclusion of proposals in the
Company's proxy solicitation materials), for business to be properly brought
before a meeting by a stockholder (other than the nomination of candidates for
election as directors as provided in Article II, Section 2), notice thereof in
writing must be delivered to the Secretary of the Company not later than (a)
with respect to an annual meeting of stockholders, ninety (90) days in advance
of such meeting, provided, however, if the annual meeting is not held on or
within eight (8) days of the date set forth in Article 1, Section 1 and if less
than one hundred (100) days notice or public disclosure of the date of the
meeting is given to stockholders, such notice by a stockholder must be not
later than the tenth day following the date on which notice or public
disclosure of the date of the meeting was first given the stockholders and (b)
with respect to a special meeting of stockholders, such notice by a stockholder
must be not later than the tenth day following the date on which notice or
public disclosure of the date of the meeting was first given the stockholders.
A stockholder's notice to the Secretary shall set forth as to any matter the
stockholder proposes to bring before the meeting (a) the name and address of
the stockholder, (b) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, and (c) any material interest of the stockholder in such business.
The chairman of the meeting may rule out of order any business not properly
brought before the meeting in compliance with the foregoing procedures.
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ARTICLE II
DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE. The number of directors constituting
the entire Board of Directors of the Company shall be not less than seven (7)
nor more than twenty-one (21) and shall be determined in the manner set forth
in the Article of Incorporation. Classifications of directors pursuant to the
Articles of Incorporation shall be by the Board of Directors. All directors
shall be stockholders in the Company. At each annual meeting of stockholders,
directors shall be elected by a plurality of the votes cast, to hold office as
provided in the Articles of Incorporation and until their successors are
elected and qualified.
ARTICLE II
SECTION 2. NOMINATIONS OF DIRECTOR CANDIDATES. Nominations of candidates for
election as directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Nominations by a
stockholder must be made by notice in writing delivered to the Secretary of the
Company not later than (a) with respect to an election to be held at an annual
meeting of stockholders, ninety (90) days in advance of such meeting, provided,
however, if the annual meeting is not held on or within eight (8) days of the
date set forth in Article 1, Section 1 and if less than one hundred (100) days
notice or public disclosure of the date of the meeting is given to
stockholders, such notice by a stockholder must be not later than the tenth
day following the date on which notice or public disclosure of the date of the
meeting was first given the stockholders and (b) with respect to an election
to be held at a special meeting of stockholders, such notice by a stockholder
must be not later than the tenth day following the date on which notice or
public disclosure of the date of the meeting was first given the stockholders.
A stockholder's notice to the Secretary shall set forth: (a) the name and
address of the stockholder, (b) the name, age and business address of each
nominee proposed in such notice, (c) such other information concerning each
nominee as must be disclosed of nominees in proxy solicitations pursuant to
proxy rules of the Securities and Exchange Commission, and (d) the written
consent of each nominee to serve as a director if so elected. The chairman of
the meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedures. A stockholder's compliance with the
foregoing procedures shall not require the Company to include a proposed
nominee in the Company's proxy solicitation materials.
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SECTION 3. REMOVAL OF DIRECTORS. Subject to the rights of holders of any
series of preferred stock then outstanding, any director may be removed from
office at any time either (a) by vote of the holders of a majority of the shares
entitled to vote at an election of directors, but only for cause, or (b) by
vote of a majority of the other directors, with or without cause.
SECTION 4. VACANCIES. Any vacancy in the Board of Directors through death,
resignation, disqualification or other cause, or because of an increase in the
number of directors, may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum, for a term of office continuing
only until the next election of directors by the stockholders.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board of Directors shall
be held at the principal office of the Company on the third Tuesday of the
month at nine A.M., unless otherwise specified (1) by the Chairman or Vice
Chairman of the Board or the President, provided that notice is given
personally or by mail or telegram to the last known address of
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each director at least three (3) days before such meeting, or (2) by resolution
of the Board of Directors. No notice shall be required to be given of any
regular meeting, except as provided above.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of Directors may be
held whenever called by the Chairman or Vice Chairman of the Board, or the
President, or a Vice President or the Secretary of the Company, or pursuant to
resolution of the Board of Directors. Notice thererof shall be given personally
or by mail or telegram to the last known address of each director at least
three (3) days before such meeting. Any director may waive notice of any
meeting. Neither the business to be transacted at, nor the purpose of, a
special meeting need be specified in the notice or waiver of notice of the
meeting.
SECTION 7. QUORUM AND VOTING. A majority of the members of the Board then in
office shall constitute a quorum for the transaction of business, except where
otherwise provided by law or the Articles of Incorporation or the By-Laws; but
a majority of members present at any regular or special meeting, although less
than a quorum, may adjourn the meeting from time to time, without notice. The
vote of the majority of members present at a meeting at which a quorum is
present constitutes the action of the Board, unless the vote of a larger number
is required by law of the Articles of Incorporation or the By-Laws.
SECTION 8. ACTION OF DIRECTORS WITHOUT A MEETING. Except as otherwise provided
by law, action required or permitted to be taken pursuant to authorization
voted at a meeting of the Board or a committee thereof may be taken without a
meeting if, before or after the action, all members of the Board or of the
committee consent thereto in writing. The written consents
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shall be filed with the minutes of the proceedings of the Board or committee.
The consent has the same effect as a vote of the Board or committee for all
purposes.
ARTICLE III
OFFICERS
SECTION 1. OFFICERS. The officers of the Company shall be a Chairman of the
Board, a President, one or more Vice Presidents, a Secretary and a Treasurer.
The Board of Directors shall have power to add designations to the aforesaid
offices and to create such other offices as it may from time to time deem
expedient, and shall, at some convenient time after each annual meeting, elect
officers of the Company for the ensuing year.
SECTION 2. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of stockholders and of the Board of Directors. The Chairman of the
Board shall perform such duties as may be designated by the Board of Directors,
and shall have authority to execute on behalf of the Company any and all
contracts, agreements, bonds, deeds, mortgages, leases or other obligations of
the Company. In the absence or incapacity of the Chairman, the Board of
Directors shall determine which other officer shall perform the duties of that
office.
SECTION 3. VICE CHAIRMAN OF THE BOARD. If the Board of Directors has elected a
Vice Chairman of the Board, the Vice Chairman shall perform such duties as may
be designated by the Chairman of the Board, subject to the direction of the
Board of Directors, and shall have authority to execute on behalf of the Company
any and all contracts, agreements, bonds, deeds, mortgages, leases or other
obligations of the Company.
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SECTION 4. THE PRESIDENT. The President shall perform such duties as may be
designated by the Board of Directors, and shall have authority to execute on
behalf of the Company any and all contracts, agreements, bonds, deeds,
mortgages, leases or other obligations of the Company. In the absence or
incapacity of the President, the Board of Directors shall determine which other
officer shall perform the duties of that office.
SECTION 5. THE VICE PRESIDENTS. The Vice Presidents shall perform such duties as
may be designated by the Chairman of the Board or the President, subject to the
direction of the Board of Directors. Any Vice President shall have authority
to execute on behalf of the Company any and all contracts, agreements, bonds,
deeds, mortgages, leases or other obligations of the Company.
SECTION 6. THE TREASURER. The Treasurer shall have the custody of and be
responsible for all funds and securities of the Company, subject to the control
of the Board of Directors. The Treasurer shall keep bank accounts in the name
of the Company and shall exhibit the books and accounts to any director upon
application at the principal office of the Company during ordinary business
hours. The Treasurer shall perform all duties incident to the position of
Treasurer, subject to the control of the Board of Directors, and shall have
authority to sign and endorse all notes, checks, drafts and other obligations
of the Company.
SECTION 7. THE SECRETARY. The Secretary shall keep a record in proper books
provided for that purpose of all the meetings and proceedings of the Board of
Directors and the minutes of the stockholders' meetings, and shall keep such
other records and shall perform such other duties as the Board of Directors or
Chairman of the Board shall designate. The Secretary shall notify the
directors and stockholders of their respective meetings, shall attend to the
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giving and serving of all notices of the Company, and shall in general do and
perform all the duties pertaining to the office, subject to control of the
Board of Directors.
The Secretary shall keep a stock certificate book and transfer book at the
office of the Company, or at such other place or places as may be chosen by the
Board of Directors. The Sectetary shall keep careful data from which a list of
stockholders can be compiled, and shall furnish such list upon order of the
Board of Directors. The Secretary shall have the custody of the seal of the
Company, and shall attach the same to instruments required to be executed under
the seal of the Company.
ARTICLE III
SECTION 8. DIVISIONAL VICE PRESIDENTS AND JUNIOR OFFICERS. The Board of
Directors may elect such junior officers as may from time to time be deemed
expedient. In addition, the Chairman of the Board, the President or the Board
of Directors may elect such Divisional Vice Presidents as may from time to time
be deemed by any such person to be necessary or desirable in the conduct
of the Company's business. The Divisional Vice President and junior officers
shall have such powers and authority and shall perform such duties as may be
assigned to them by the Chairman of the Board, the President, the Board of
Directors or the senior officer to whom they report.
SECTION 10. VACANCIES. Vacancies among officers of the Company during the year
may be filled by the Board of Directors for the unexpired portion of the term.
ARTICLE IV
COMMITTEES
SECTION 1. EXECUTIVE/FINANCE COMMITTEE. There shall be an Executive and Finance
Committee chosen by the Board of Directors at its first meeting after this
By-Law is adopted and
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thereafter at its first meeting following the annual meeting of stockholders of
the Company each year. The Executive and Finance Committee shall consist of
not less than three members of the Board, one of whom shall be the Chairman of
the Board. One member shall be designated as chairman by the Board. During the
intervals between meetings of the Board of Directors and subject to such
limitations as provided by law or by resolution of the Board, the Committee
shall possess and may exercise all powers and authority of the Board of
Directors in the management and direction of the affairs of the Company and
shall be responsible for review of corporate financial policies and procedures
and shall recommend to the Board dividend policy, corporate financing, the
issuance and sale of company securities and investment of funds, and shall
perform such other duties as the Board may prescribe. The Committee shall keep
minutes of its proceedings, and all action by the Committee shall be reported
at the next meeting of the Board of Directors.
SECTION 2. AUDIT COMMITTEE. There shall be an Audit Committee chosen by the
Board of Directors at its first meeting after this By-Law is adopted and
thereafter at its first meeting following the annual meeting of stockholders
each year. The Audit Committee shall consist of not less than three members
of the Board, none of whom shall be an officer of the Company or any of its
subsidiaries. One member shall be designated as chairman by the Board. The
Committee shall recommend to the Board the conditions, compensation and term of
appointment of independent certified public accountants for the auditing of the
books and accounts of the Company and its subsidiaries. From time to time, as
considered necessary and desirable, the Committee shall confer with such
accountants for the exchanging of views relating to the scope and results of
the auditing books and accounts of the Company and its subsidiaries and shall
provide to the Board such assistance as may be required with respect to the
corporate and reporting practices of the Company. The Committee shall perform
such other duties as the Board may prescribe.
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SECTION 3. COMPENSATION AND INCENTIVES COMMITTEE. There shall be a Compensation
and Incentives Committee chosen by the Board of Directors at its first meeting
after this By-Law is adopted and thereafter at its first meeting following the
annual meeting of stockholders each year. The Committee shall consist of not
less than three members of the Board, none of whom shall be an officer of the
Company or any of its subsidiaries. No person may be a member of this Committee
who is, or within one year prior to his appointment to the Committee was,
eligible for selection as a person to whom rights or benefits may be granted
pursuant to any stock option or other long term incentive plan of the Company
or any of its subsidiaries. One member shall be designated as chairman by the
Board. The Committee shall determine the nature and amount of compensation of
all senior officers of the Company. As may be prescibed by the Board of
Directors, the Committee shall administer any stock option or other long term
incentive plan of the Company and perform other prescibed duties.
SECTION 4. NOMINATING COMMITTEE. There shall be a Nominating Committee chosen
by the Board of Directors at its first meeting following the annual meeting of
stockholders each year. The Nominating Committee shall consist of not less
than three members of the Board, none of whom shall be an officer of the
Company or any of its subsidiaries. One member shall be designated as chairman
by the Board. The Committee shall recommend to the Board nominees for
election as directors, and shall perform such other duties as the Board may
prescribe.
SECTION 5. PUBLIC ISSUES COMMITTEE. There shall be a Public Issues Committee
chosen by the Board of Directors at its first meeting after this By-Law is
adopted and thereafter at its first meeting following the annual meeting of
stockholders each year. The Committee shall consist of not less than three
members of the Board. One member shall be designated as chairman
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by the Board. The Committee shall consider the extent to which Company
policies and activities relate to and are in proper accord with public
interest, shall make appropriate recommendations in that regard to management
or the Board, and shall perform such other duties as the Board may prescribe.
SECTION 6. HEALTH CARE COMMITTEE. There shall be a Health Care Committee chosen
by the Board of Directors at its meeting at which this By-Law is adopted and
thereafter at its first meeting following the annual meeting of stockholders of
the Company each year. The Health Care Committee shall consist of not less
than three persons, a majority of whom shall be members of the Board. One
member shall be designated as chair by the Board. The Committee shall review
and monitor the Company's health care programs, their adequacy and cost
effectiveness, shall make recommendations in that regard to management or the
Board, and shall perform such other duties as the Board may prescribe.
SECTION 7. COMMITTEE VACANCIES; QUORUM, VOTING AND PROCEDURES. Each member of a
committee shall serve at the pleasure of the Board of Directors, and vacancies
on a committee may be filled by the Board at any time. The Board may also
increase the number of members of a committee at any time. A majority of all
members of a committee shall constitute a quorum, and the affirmative vote of a
majority of all the members of a committee shall constitute the action of the
committee. Each committee shall determine its own rules of procedure and shall
meet as provided by such rules, or by resolution of the Board, or on the call
of the committee chairman or any member thereof.
SECTION 8. OTHER COMMITTEES. The Board of Directors may by resolution establish
such other committees as may be desirable, the responsibilities and duties of
which may be prescibed by the Board, subject to such limitations as provided by
law.
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ARTICLE V
CAPITAL STOCK
SECTION 1. CERTIFICATES. Certificates of shares of the capital stock of the
Company shall be in such form as shall be approved by the Board of Directors,
signed by the Chairman or Vice Chairman of the Board, the President or a Vice
President and also by the Secretary or an Assistant Secretary or by the
Treasurer or an Assistant Treasurer. The seal of the Company may be engraved
on the certificates instead of being manually affixed, and the signatures of
officers may be facsimile signatures if the certificate is countersigned by a
transfer agent or registered by a registrar other than the Company itself or
its employee. All certificates of stock shall be consecutively numbered, and
the name(s) and address of the person(s) to whom issued, the number of shares
and date of issue, shall be entered on the stock transfer books of the Company.
All certificates of stock surrendered to the Company for transfer shall be
cancelled and, except in the case of lost or destroyed certificates as
hereinafter provided, no new certificate shall be issued until the former
certificate or certificates for the shares represented thereby shall have been
surrendered and cancelled.
SECTION 2. LOST CERTIFICATES. When a certificate of stock previously issued
is alleged to have been lost or destroyed, a new certificate may be issued
therefor upon such terms and indemnity to the Company as the Board of Directors
may prescribe.
SECTION 3. TRANSFER OF SHARES. Transfer of shares of stock of the Company
shall be made only on the stock transfer books of the Company, and the Company
may decline to recognize the holder of any certificate of stock of the Company
as a stockholder until the shares represented by such certificate are
transferred into his or her name on the stock transfer
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books of the Company. The Company shall be entitled to treat the holder of
record of any shares of stock as the absolute owner thereof, and shall not be
bound to recognize any equitable or other claim to or interest in such shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law. The Board of Directors
may appoint one or more stock transfer agents and registrars (which functions
may be combined), and may require all stock certificates to bear the signature
of such transfer agent and such registrar.
SECTION 4. FIXING OF RECORD DATE. For the purpose of determining stockholders
entitled to notice of and to vote at a meeting of stockholders or an
adjournment thereof, or for the purpose of determining stockholders entitled to
receive payment of a dividend or allotment of a right, or for the purpose of
any other action, the Board of Directors may fix in advance a date as the record
date for any such determination of stockholders. The date shall not be more
than sixty (60) nor less than (10) days before the date of the meeting, nor
more than sixty (60) days before any other action.
ARTICLE VI
SALE OF THE ASSETS OF THE COMPANY
SECTION 1. The entire assets, business and good will of the Company may be
sold to any person, firm or corporation, either within or without the State of
Michigan, upon such terms and conditions, and for such lawful consideration, as
may be authorized by vote of majority of the whole Board of Directors, and
approved by vote in person or by proxy, of the holders of not less than
three-fourths (3/4) of the outstanding capital stock of the Company, given at
an annual or at a special meeting of the stockholders called and held for that
purpose.
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ARTICLE VII
MISCELLANEOUS
SECTION 1. SEAL. The seal of the Company shall be circular in form, with the
words "Kmart Corporation, Michigan" on the circumference, and shall be kept in
the charge and custody of the Secretary, to be affixed to all instruments
requiring a seal.
SECTION 2. FISCAL YEAR. The fiscal year of the Company shall end on the last
Wednesday in January in each year.
SECTION 3. INDEMNIFICATION. Any director or officer of the Company who is or
was a party or is threatened to be made a party or is otherwise involved in any
threatened, pending or completed action (including any civil, criminal,
administrative or investigative suit or proceeding) by reason of the fact that
he or she is or was a director or officer of the Company or is or was serving
another corporation, partnership, joint venture, trust or other enterprise at
the request of the Company, including service with respect to employee benefit
plans, shall be indemnified by the Company against expenses, including
attorneys' fees, judgments, penalties, fines and amounts paid or to be paid in
settlement reasonably incurred by such person in connection with the action.
Such indemnification shall include the right to be paid by the Company any
reasonable expenses incurred by such person in defending such action in advance
of its final disposition.
Indemnification hereunder shall be to the fullest extent now or hereafter
authorized by the Michigan Business Corporation Act, and shall be determined in
the manner provided therein; provided, however, that the Company shall
indemnify any person seeking indemnity in
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connection with an action (or part thereof) initiated by such person only if
the action (or part thereof) was authorized by the Board of Directors. It
shall be a defense to any claim for indemnity hereunder that the claimant has
not met the applicable standard of conduct for which indemnification is
permitted under the Michigan Business Corporation Act.
The Company may, by action of its Board of Directors, provide indemnification
to employees and agents to the same or a lesser extent as the foregoing
indemnification of directors and officers.
Indemnification provided hereunder shall be a contract right between the
Company and each director or officer of the Company who serves in such capacity
at any time while this Section 3 is in effect; shall continue to a person who
has ceased to serve in such capacity and shall inure to the benefit of the
heirs, executors and administrators of such person; and shall not be
exclusive of any other right which any person may have or hereafter acquire
under any other written contractual agreement.
Neither the Company nor its directors or officers nor any person acting on its
behalf shall be liable to anyone for any determination as to the existence or
absence of conduct which would provide a basis for making or refusing to make
any payment hereunder or for taking or omitting to take any other action
hereunder, in reliance upon advice of counsel.
SECTION 4. CONTROL SHARE ACQUISITIONS. Chapter 7B of the Michigan Business
Corporation Act (being Section 450.1790 through 450.1799 of Michigan Compiled
Laws) shall not apply to control share acquisitions of shares of the Company's
capital stock.
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ARTICLE VIII
AMENDMENTS
SECTION 1. BY DIRECTORS. These By-Laws may be amended, altered or repealed
and new By-Laws may be adopted, at any meeting of the Board of Directors by a
majority vote of the members of the Board then in office; provided, however,
that the Board of Directors shall not amend, alter or repeal Article VI of
these By-Laws.
SECTION 2. BY STOCKHOLDERS. These By-Laws may also be amended, altered or
repealed and new By-Laws may be adopted at any meeting of stockholders, if such
purpose is contained in the notice of meeting (pursuant to Article 1, Section
3), by a majority of the votes cast by the holders of shares entitled to vote
thereon; provided, however, that Article VI of these By-Laws shall not be
amended, altered or repealed without the consent of the holders of at least
two-thirds (2/3) of the issued and outstanding capital stock of the Company,
given in person or by proxy, at an annual or special meeting of the
stockholders called and held for the purpose.
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