EXHIBIT 3b
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By-Laws
of Kmart Corporation
A Michigan Corporation
(Inc. Mar. 9, 1916)
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September 1995
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__.
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Secretary
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 Directors'
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 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
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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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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 I, 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 to the
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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.
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
Articles 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.
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 I, Section 1 and if less than
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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.
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
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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 may be
held, either within or without the State of Michigan, at such time and at such
place as may from time to time be determined by the Board of Directors, and no
notice shall be required to be given of any regular meeting.
Section 6. Special Meetings. Special meetings of the Board of Directors may be
held, either within or without the State of Michigan, by resolution of the Board
of Directors or whenever called by the Chairman or Vice Chairman of the Board,
or the President, or a Vice President or the Secretary of the Company, provided
that notice thereof is given personally to the last known address of each
director either by mail, not less than forty-eight (48) hours before such
meeting, or by telephone or telegram, not less than twenty-four (24) hours
before such meeting, or on such shorter notice as the person or persons calling
such meeting may deem necessary or appropriate in the circumstances. Any
director may waive notice of any special 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
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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 or 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 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.
Section 9. Chairman of the Board. The Board of Directors may elect a Chairman of
the Board from among the members of the Board. If the Board of Directors has
elected a Chairman of the Board, the Chairman shall preside at all meetings of
stockholders and of the Board of Directors and shall perform such duties as may
be designated by the Board of Directors.
Section 10. Vice Chairman of the Board. The Board of Directors may elect a Vice
Chairman of the Board from among the members 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.
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ARTICLE III
Officers
Section 1. Officers. The officers of the Company shall be 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. 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 3. 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 4. 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
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Directors, and shall have authority to sign and endorse all notes, checks,
drafts and other obligations of the Company.
Section 5. 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 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 the 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 Secretary 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.
Section 6. Divisional, Operations and Regional Vice Presidents and Junior
Officers. The Board of Directors may elect such junior officers as it may from
time to time deem expedient. In addition, the Board of Directors and the
Chairman of the Board may each elect such Divisional Vice Presidents, Operations
Vice Presidents and Regional Vice Presidents as each may from time to time deem
expedient. The Divisional Vice Presidents, Operations Vice Presidents, Regional
Vice Presidents and junior officers shall have such powers and authority and
shall perform such duties as may be
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assigned to them by the Board of Directors, the Chairman of the Board or the
senior officer to whom they report.
Section 7. Removal. Any officer elected or appointed by the Board of Directors
may be removed at any time with or without cause by the Board of Directors.
Section 8. 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 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.
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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.
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 and directors of the Company. As may be
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prescribed by the Board of Directors, the Committee shall administer any stock
option or other long term incentive plan of the Company and perform other
prescribed 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. 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 6. 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 prescribed 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 signature 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
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the shares represented by such certificate are transferred into his or her name
on the stock transfer 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 ten (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 connection with an action (or part thereof)
initiated by such
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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 Sections 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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