SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR
15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1995
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-416
SEARS, ROEBUCK AND CO.
(Exact name of registrant as specified in its charter)
New York 36-1750680
(State of Incorporation) (I.R.S. Employer Identification No.)
3333 Beverly Road, Hoffman Estates, Illinois 60179
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 708/286-2500
Registrant (1) has filed all reports required to be filed by Section 13
or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months and (2) has been subject to such filing requirements for the
past 90 days.
Yes X No
As of October 31, 1995 the Registrant had 389,849,822 common shares,
$.75 par value, outstanding.
<PAGE>
Sears, Roebuck and Co.
Index to Quarterly Report on Form 10-Q
September 30, 1995
Page
Part I - Financial Information.
Item 1. Financial Statements.
Condensed Consolidated Statements of Income (unaudited) -
Three and Nine Months Ended September 30, 1995 and
October 1, 1994. 1
Condensed Consolidated Balance Sheets (unaudited) -
September 30, 1995, October 1, 1994 and
December 31, 1994. 2
Condensed Consolidated Statements of Cash Flows (unaudited) -
Nine Months Ended September 30, 1995 and October 1, 1994. 3
Notes to Condensed Consolidated Financial Statements
(unaudited). 4
Independent Certified Public Accountants' Review Report. 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations. 7
Part II - Other Information.
Item 6. Exhibits and Reports on Form 8-K. 10
<PAGE>
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<TABLE>
PART I. FINANCIAL INFORMATION
ITEM I. FINANCIAL STATEMENTS
SEARS, ROEBUCK AND CO.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
<CAPTION>
Three Months Ended Nine Months Ended
Sept. 30, Oct. 1, Sept. 30, Oct. 1,
(millions, except per common share data) 1995 1994 1995 1994
<S>
Revenues <C> <C> <C> <C>
Merchandise sales and services $ 7,448 $ 7,025 $ 21,213 $ 20,168
Credit revenues 970 901 2,858 2,663
Total revenues 8,418 7,926 24,071 22,831
Costs and expenses
Cost of sales, buying and occupancy 5,483 5,171 15,725 14,848
Selling and administrative 1,868 1,828 5,396 5,325
Depreciation and amortization 142 125 417 367
Provision for uncollectible accounts 208 163 580 501
Interest 343 324 1,025 965
Total costs and expenses 8,044 7,611 23,143 22,006
Operating income 374 315 928 825
Other income 9 10 20 23
Income before income taxes 383 325 948 848
Income taxes 155 133 378 347
Income from continuing operations 228 192 570 501
Income from discontinued operations, less income tax
expense (benefit) of $ - , $(28), $249 and $(246) - 172 776 268
Net income $ 228 $ 364 $ 1,346 $ 769
Income from continuing operations consists of:
Domestic operations $ 235 $ 202 $ 593 $ 538
International operations (7) (6) (23) (13)
Corporate - (4) - (24)
Income from continuing operations $ 228 $ 192 $ 570 $ 501
Earnings per common share, after
allowing for dividends on preferred shares:
Income from continuing operations $ 0.56 $ 0.47 $ 1.40 $ 1.23
Discontinued operations - 0.44 1.98 0.69
Net income $ 0.56 $ 0.91 $ 3.38 $ 1.92
Cash dividends declared per common share $ 0.23 $ 0.40 $ 1.03 $ 1.20
Average common and common
equivalent shares outstanding 396.0 389.8 392.8 388.7
<FN>
See accompanying notes.
</FN>
</TABLE>
<PAGE>
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<TABLE>
SEARS, ROEBUCK AND CO.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
<CAPTION>
(millions) Sept. 30, Oct. 1, Dec. 31,
1995 1994 1994
<S>
Assets
Current assets <C> <C> <C>
Cash and invested cash $ 469 $ 779 $ 548
Retail customer receivables 18,328 16,701 18,201
Other receivables 229 719 321
Merchandise inventories 4,840 4,504 4,044
Prepaid expenses and deferred charges 405 444 303
Deferred income taxes 1,065 1,250 998
Total current assets 25,336 24,397 24,415
Property and equipment
Land 372 414 371
Buildings and improvements 4,264 4,517 4,041
Furniture, fixtures and equipment 4,139 3,916 3,777
Capitalized leases 237 238 229
9,012 9,085 8,418
Less accumulated depreciation 4,364 4,501 4,165
Total property and equipment, net 4,648 4,584 4,253
Deferred income taxes 608 658 607
Other assets 809 905 806
Net assets of discontinued operations 472 7,498 7,231
Total assets $ 31,873 $ 38,042 $ 37,312
Liabilities
Current liabilities
Short-term borrowings $ 5,843 $ 6,200 $ 6,190
Current portion of long-term debt and capitalized
lease obligations 1,491 1,311 1,141
Accounts payable and other liabilities 6,223 6,192 5,787
Unearned revenues 835 752 795
Total current liabilities 14,392 14,455 13,913
Long-term debt and capitalized lease obligations 9,434 9,077 8,844
Postretirement benefits 2,822 2,783 2,810
Minority interest and other liabilities 924 1,039 944
Total liabilities 27,572 27,354 26,511
Shareholders' Equity
8.88% Preferred Shares, First Series 325 325 325
Series A Mandatorily Exchangeable Preferred Shares - 1,236 1,236
Common shares 322 294 294
Capital in excess of par value 3,626 2,379 2,385
Retained income (note 2) 2,086 8,408 8,918
Treasury stock (at cost) (1,648) (1,691) (1,690)
Deferred ESOP expense (257) (579) (558)
Unrealized net capital gains - 377 32
Cumulative translation adjustments (153) (61) (141)
Total shareholders' equity 4,301 10,688 10,801
Total liabilities and shareholders' equity $ 31,873 $ 38,042 $ 37,312
Total common shares outstanding (including Series A
Mandatorily Exchangeable Preferred Shares) 389.7 387.1 389.3
<FN>
See accompanying notes.
</FN>
</TABLE>
<PAGE>
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<TABLE>
SEARS, ROEBUCK AND CO.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<CAPTION>
Nine Months Ended
Sept. 30, Oct. 1,
1995 1994
(millions)
<S>
CASH FLOWS FROM OPERATING ACTIVITIES:
<C> <C>
Net income $ 1,346 $ 769
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation, amortization and other noncash items 452 444
Provision for uncollectible accounts 580 501
Gain on sales of property and investments (11) (1)
Change in deferred income taxes (53) 26
Increase in retail customer receivables (725) (1,335)
Increase in merchandise inventories (794) (1,000)
Decrease (increase) in other operating assets (3) 170
Increase in other operating liabilities 524 129
Discontinued operations (776) (268)
Net cash provided by (used in) operating activities 540 (565)
CASH FLOWS FROM INVESTING ACTIVITIES:
Net decrease (increase) in investments (2) 20
Proceeds from sales of property and equipment 13 1
Purchases of property and equipment (804) (646)
Net cash provided by (used in) discontinued operations (310) 183
Net cash used in investing activities (1,103) (442)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from long-term debt 1,714 1,771
Repayments of long-term debt (836) (2,218)
Increase (decrease) in short-term borrowings, primarily
90 day of less (327) 1,586
Repayment of ESOP note receivable 372 69
Common shares issued for employee stock plans 74 38
Dividends paid to shareholders (510) (523)
Net cash provided by financing activities 487 723
Effect of exchange rate changes on cash and invested cash (3) (3)
Net decrease in cash and invested cash (79) (287)
Cash and invested cash at December 31, 1994 and 1993 548 1,066
Cash and invested cash at September 30, 1995 and October 1, 1994 $ 469 $ 779
<FN>
See accompanying notes.
</FN>
</TABLE>
<PAGE>
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SEARS, ROEBUCK AND CO.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Condensed Consolidated Financial Statements
The Condensed Consolidated Balance Sheets as of
September 30, 1995 and October 1, 1994 and the related
Condensed Consolidated Statements of Income for the three-
and nine-months then ended and Condensed Consolidated
Statements of Cash Flows for the nine months then ended
are unaudited. The interim financial statements reflect
all adjustments (consisting only of normal recurring
accruals) which are, in the opinion of management,
necessary for a fair statement of the results for the
interim periods presented. The condensed consolidated
financial statements should be read in conjunction with
the consolidated financial statements and notes thereto
included in the Sears, Roebuck and Co. 1994 consolidated
financial statements for the three years ended December
31, 1994 in the Report on Form 8-K dated May 15, 1995, as
amended by Amendment No. 1. The results of operations for
the interim periods should not be considered indicative of
results to be expected for the full year.
Earnings per common share is computed based on the
weighted average number of common and common equivalent
shares (dilutive stock options) outstanding and after
adjustment for dividends of $7 and $22 million for the
three- and nine-month periods ended September 30, 1995 and
October 1, 1994, respectively, on the 8.88% Preferred
Shares. The Series A Mandatorily Exchangeable Preferred
Shares (PERCS) were considered common shares due to their
mandatory exchange into common shares, and the dividends
thereon were not deducted from net income for purposes of
calculating earnings per common share. On March 20, 1995,
the Company exchanged all of the 28.8 million PERCS for
35.7 million common shares of the Company. The exchange
did not dilute earnings per share as the PERCS were
reflected in the Company's earnings per share calculation.
Certain reclassifications have been made in the 1994
financial statements to conform to current accounting
classifications.
2. Dividend Restrictions
Under terms of indentures entered into in 1981 and
thereafter, Sears cannot take specified actions, including
the declaration of cash dividends, which would cause its
consolidated unencumbered assets, as defined, to fall
below 150% of its consolidated liabilities, as defined.
At September 30, 1995, approximately $1.5 billion could be
paid in dividends to shareholders under the most
restrictive indentures.
3. Discontinued Operations
On November 10, 1994, the Company announced its
intention to distribute in a tax-free dividend to the
Company's common shareholders its 80.3% ownership interest
in The Allstate Corporation. The distribution was
approved by shareholders at a special meeting on March 31,
1995. On June 20, 1995, the Company's Board of Directors
approved the distribution to Sears shareholders in a
tax-free dividend. Sears shareholders of record on June
30, 1995 received, effective June 30, 1995, .927035 share
of The Allstate Corporation for each Sears common share.
This transaction resulted in a non-cash dividend to Sears
shareholders totaling $8.98 billion.
In conjunction with the Allstate spin-off, The
Savings and Profit Sharing Fund of Sears Employees, which
includes an Employee Stock Ownership Plan (the ESOP), was
split into two different plans, a plan for employees of
the Company and its affiliates other than Allstate and a
plan for Allstate employees. The ESOP was split with 50%
of the unallocated shares in the ESOP and 50% of the ESOP
debt being transferred to the Allstate plan. In connection
with this transfer, Allstate purchased from the Company 50%
of the Company's remaining loan to the ESOP at a purchase
price of $327 million.
<PAGE>
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SEARS, ROEBUCK AND CO.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The Company is also in the process of selling its
interest in Homart Development Co. and affiliated
entities. In July 1995, the Company completed the sale of
Homart's commercial office building portfolio to an
operating partnership composed of The Morgan Stanley Real
Estate Fund II, L.P. and Hines Interests Limited
Partnership. On July 31, 1995, the Company announced a
final agreement to sell the retail shopping center and
community development businesses of Homart to a
wholly-owned subsidiary of General Growth Properties, Inc.
Closing of the shopping center transaction is expected by
the end of the fourth quarter of 1995. No loss is
expected to be incurred as a result of these transactions.
Revenues of the discontinued operations were $62 million
and $11.44 billion for the three- and nine-month periods
ended September 30, 1995, respectively, and $5.36 billion
and $15.95 billion for the comparable 1994 periods.
4. Legal Proceedings
Various legal and governmental proceedings are pending
against the Company, many involving routine litigation
incidental to the businesses. Other matters contain
allegations which are nonroutine and involve compensatory,
punitive or antitrust treble damage claims in very large
amounts, as well as other types of relief.
The consequences of these matters are not presently
determinable but, in the opinion of management, the
ultimate liability in excess of reserves currently
recorded will not have a material effect on the results of
operations, financial position, liquidity or capital
resources of the Company.
<PAGE>
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SEARS, ROEBUCK AND CO.
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REVIEW REPORT
To the Shareholders and Board of Directors
of Sears, Roebuck and Co.:
We have reviewed the accompanying Condensed Consolidated
Balance Sheets of Sears, Roebuck and Co. as of September 30,
1995 and October 1, 1994, and the related Condensed
Consolidated Statements of Income for the three- and
nine-month periods ended September 30, 1995 and October 1,
1994 and Condensed Consolidated Statements of Cash Flows for
the nine-month periods ended September 30, 1995 and October
1, 1994. These financial statements are the responsibility
of the Company's management.
We conducted our review in accordance with standards
established by the American Institute of Certified Public
Accountants. A review of interim financial information
consists principally of applying analytical procedures to
financial data and of making inquiries of persons responsible
for financial and accounting matters. It is substantially
less in scope than an audit conducted in accordance with
generally accepted auditing standards, the objective of which
is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express
such an opinion.
Based on our review, we are not aware of any material
modifications that should be made to such condensed
consolidated financial statements for them to be in
conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally
accepted auditing standards, the Consolidated Balance Sheet
of Sears, Roebuck and Co. as of December 31, 1994, and the
related Consolidated Statements of Income, Shareholders'
Equity, and Cash Flows for the year then ended (not presented
herein); and in our report dated February 24, 1995 (May 10,
1995 as to Note 4), we expressed an unqualified opinion on
those consolidated financial statements and included an
explanatory paragraph relating to the Company's changing its
method of accounting for postretirement benefits in 1992. In
our opinion, the information set forth in the accompanying
Condensed Consolidated Balance Sheet as of December 31, 1994,
is fairly stated, in all material respects, in relation to
the Consolidated Balance Sheet from which it has been
derived.
Deloitte & Touche, LLP
Chicago, Illinois
November 9, 1995
<PAGE>
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ITEM 2. - SEARS, ROEBUCK AND CO.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
THREE- AND NINE-MONTH PERIODS ENDED SEPTEMBER 30, 1995 AND OCTOBER 1, 1994
Operating Results
Revenues increased 6.2% to $8.42 billion and 5.4% to
$24.07 billion for the three- and nine-month periods ended
September 30, 1995, respectively, as compared to the
comparable 1994 periods. Revenues consist of revenues from
domestic operations and international operations. Domestic
operations are comprised of domestic merchandising and
domestic credit operations. Domestic merchandising includes
the core merchandising, product services and direct response
businesses in the United States and Puerto Rico.
International operations consist of similar merchandising and
credit operations conducted in Canada through Sears Canada
Inc. (Sears Canada), an indirect 61.1% owned subsidiary, and
in Mexico through Sears Roebuck de Mexico, S.A. de C.V.
(Sears Mexico), an indirect 75.4% owned subsidiary.
<TABLE>
<CAPTION>
Revenues Three Months Ended Nine Months Ended
(millions) Sept. 30, Oct. 1, Sept. 30, Oct. 1,
1995 1994 Change 1995 1994 Change
<S>
Domestic operations: <C> <C> <C> <C> <C> <C>
Merchandise sales and services $ 6,743 $ 6,250 7.9% $ 19,196 $ 17,955 6.9%
Credit revenues 883 821 7.6 2,590 2,421 7.0
Total domestic operations 7,626 7,071 7.9 21,786 20,376 6.9
International operations 792 855 (7.5) 2,285 2,455 (7.0)
Total revenues $ 8,418 $ 7,926 6.2% $ 24,071 $ 22,831 5.4%
</TABLE>
<TABLE>
<CAPTION>
Domestic Merchandise Sales and Services Three Months Ended Nine Months Ended
Sept. 30, Oct. 1, Sept. 30, Oct. 1,
(millions, except number of stores) 1995 1994 1995 1994
<S> <C> <C> <C> <C>
Department stores $ 5,290 $ 4,951 $ 15,045 $ 14,193
Free-standing stores 951 830 2,698 2,374
Core merchandising revenues 6,241 5,781 17,743 16,567
Other revenues 502 469 1,453 1,388
Merchandise sales and service $ 6,743 $ 6,250 $ 19,196 $ 17,955
Domestic comparable store sales increase 5.4% 5.0% 4.3% 9.0%
Number of domestic department stores 804 799
Number of domestic free-standing stores 1,255 1,074
Total 2,059 1,873
</TABLE>
Department store revenues grew 6.7% for the third
quarter, as the Company posted strong comparable sales
increases across all departments, despite competitive
industry conditions. Apparel revenues increased 8.0% during
the third quarter, as summer fashions sold well early in the
quarter and the onset of traditional fall weather patterns in
September sparked a strong back-to-school season and
increased sales of women's fashions. Sales gains during the
third quarter were strongest in women's dresses, junior
apparel, and men's and children's fashions. Home department
revenues increased 5.4% for the third quarter as hot summer
weather drove record air conditioner sales. Increased sales
of home appliances, electronics and sporting goods also
contributed to the increase in Home department revenues.
Revenues at Sears Auto increased 7.1% for the quarter on
higher tire and battery sales. For the nine-month period,
department store sales increased 6.0% over 1994 and were
driven by increases of 7.5% in Apparel, 4.6% in Home and 3.0%
in Sears Auto.
<PAGE>
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ITEM 2. - SEARS, ROEBUCK AND CO.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
THREE- AND NINE-MONTH PERIODS ENDED SEPTEMBER 30, 1995 AND OCTOBER 1, 1994
Free-standing store revenues increased 14.5% for the
third quarter, which came on top of a 12.4% gain in 1994.
Dealer stores, which are independently owned and operated and
focus on a home-related product assortment, contributed the
largest portion of the revenue growth, as 92 new stores have
been opened since the third quarter of 1994. Western Auto, a
wholly-owned subsidiary which operates in the retail and
wholesale automotive products and services business, also
contributed to the higher free-standing store revenues, as 63
new stores were opened in the past year. Homelife stores,
which are free-standing furniture stores, also contributed to
the revenue growth for the third quarter, as 29 new stores
were opened during the last twelve months. Free-standing
store revenues increased 13.6% for the nine-month period as
compared to 1994, driven by increases at the Dealer stores,
Western Auto and the free-standing Homelife furniture stores.
Net openings of free-standing stores during the first nine
months of 1995 were as follows:
Dealer Stores 51
Western Auto 40
Homelife 14
Sears Hardware 9
Retail Outlet 1
Total 115
In October 1995, the Company announced that its Western
Auto subsidiary had acquired 84 auto parts stores from
Nationwise Automotive, Inc. and had entered into an agreement
to acquire another 82 auto parts stores from Wheels Discount
Auto Supply, Inc., a division of Fays Incorporated. The
Company may pursue selective strategic acquisitions as a
means of growth.
The growth in credit revenues for the three- and
nine-month periods reflected higher owned receivable
balances, which were driven by the growth in merchandise
sales and services over the past year and a slower customer
liquidation rate. The percentage of merchandise sales and
services transacted with the Sears Card in the third quarter
continued to increase relative to 1994 due to the Company's
continuing efforts to integrate the promotion of Credit into
the merchandise promotional plans.
International revenues decreased 7.5% for the third
quarter reflecting continued adverse economic conditions in
both Canada and Mexico. In local currency, revenues
increased at Sears Mexico on significantly higher finance
charge revenues due to increases in government regulated
consumer credit rates and the impact of the peso devaluation
on merchandise sales. Revenues at Sears Canada declined for
the third quarter reflecting the difficult economic
conditions and increased competitive pressures.
Gross margin as a percentage of domestic merchandise
sales and services for the third quarter was 26.6% versus
26.9% in the comparable prior year period. The decline in
domestic gross margins reflects a highly competitive retail
environment. The third quarter decline was 40 basis points
less than the 70 basis point decline experienced in the
second quarter of 1995. Improving markdown trends in the
third quarter relative to the first half of 1995 contributed
to the stabilization of gross margins. For the nine-month
period, 1995 domestic gross margins declined 70 basis points
to 26.2%. International gross margins increased to 23.9% in
the third quarter from 22.1% in 1994 as gross margins at
Sears Mexico improved relative to 1994 where promotional
markdowns were unusually high due to an inventory
repositioning. For the nine-month period, International
gross margins improved 30 basis points to 22.3%.
Selling and administrative expense as a percentage of
revenues for domestic operations improved to 22.0% from 23.2%
in the third quarter of 1994. The improvement in the selling
and administrative expense ratio reflects the Company's
continued emphasis on controlling expenses and leveraging its
fixed cost base. For the nine-month period, the selling and
administrative rate for domestic operations improved 110
basis points to 22.3%. International selling and
administrative expenses increased to 24.4% from 21.9% in the
third quarter, as expense leverage declined primarily due to
the lower level of revenues at Sears Canada. For the
nine-month period, the selling and administrative expense
rate at International increased 90 basis points to 23.2%.
<PAGE>
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ITEM 2. - SEARS, ROEBUCK AND CO.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
THREE- AND NINE-MONTH PERIODS ENDED SEPTEMBER 30, 1995 AND OCTOBER 1, 1994
Depreciation and amortization expense was $142 million in
the third quarter and $417 million for the nine-month period
as compared to $125 and $367 million in the prior year periods.
The increase is attributable to higher capital expenditures
as part of the Company's department store remodeling program.
The provision for uncollectible accounts was $208 million
in the third quarter and $580 million for the nine-month
period as compared to $163 and $501 million in the prior year
periods. The increase is attributable to higher levels of
customer bankruptcies and delinquencies and a larger gross
receivable portfolio.
Interest expense increased $19 million to $343 million in
the third quarter and $60 million to $1.03 billion in the
first nine months from the comparable 1994 periods. Total
funding costs, comprised of interest expense and the funding
cost of securitized receivables, increased $19 and $45 million
to $431 million and $1.30 billion in the three- and nine-month
periods of 1995, respectively, as compared with the prior year
periods. The increase was due to funding requirements of a
larger gross receivable portfolio, which was partially offset
by a lower effective funding rate driven by a change in the
funding mix.
Due to holiday buying patterns, merchandise sales are
traditionally higher in the fourth quarter than the other
quarterly periods. As such, a disproportionate share of
operating income is typically earned in the fourth quarter.
Financial Condition
Net cash provided by the Company's operating activities
totaled $540 million for the first nine months of 1995,
compared with cash used in operating activities of $565
million for the same period in 1994. The change was
primarily attributable to lower increases in net retail
customer receivables and inventory levels in 1995. The
change in retail customer receivables was associated with the
issuance of $1.87 billion in credit account pass-through
trust certificates in the first nine months of 1995.
Gross domestic retail customer receivables were $21.90
billion at September 30, 1995, compared to $21.33 billion at
December 31, 1994. Sears, through its wholly-owned
subsidiary, Sears Receivables Financing Group, Inc., had
$4.40 and $3.95 billion of credit account pass-through
certificates outstanding at September 30, 1995 and December
31, 1994, respectively. Net sales and liquidations of
outstanding credit account pass-through certificates
decreased owned receivables by $457 million during the nine
months ended September 30, 1995, compared with a net increase
in owned receivables of $1.06 billion during the comparable
1994 period.
As of September 30, 1995, domestic merchandise
inventories on the first-in, first-out (FIFO) basis were
$5.09 billion, compared with $4.75 billion at October 1, 1994
and $4.28 billion at December 31, 1994. The increase in the
inventory levels reflects the expansion of selling space in
the department stores, the growth of the free-standing store
businesses and higher Home Improvement and Brand Central
inventory stocks.
Net cash used in investing activities totaled $1.10
billion for the first nine months of 1995 compared to $442
million in 1994. The change was primarily due to a net
increase in cash used by discontinued operations associated
with the repayment of a $450 million note payable to Allstate
related to a capital contribution in 1990 and higher net
purchases of property and equipment due to the Company's
store remodeling program.
Net cash provided by financing activities totaled $487
million for the first nine months of 1995 compared to $723
million in 1994. The change in cash used in financing
activities resulted from a reduction in net borrowings
related to increased securitization activity in 1995,
partially offset by a $327 million repayment of the ESOP note
receivable associated with the Allstate spin-off.
<PAGE>
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PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits.
An Exhibit Index has been filed as part of this Report on
Page E-1.
(b) Reports on Form 8-K.
Registrant filed no Current Reports on Form 8-K during the
quarter.
<PAGE>
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SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
Sears, Roebuck and Co.
(Registrant)
November 9, 1995 By /s/ James A. Blanda
James A. Blanda
Vice President and Controller
(Principal Accounting
Officer and duly authorized
Officer of Registrant)
<PAGE>
E-1
EXHIBIT INDEX
SEARS, ROEBUCK AND CO.
THREE MONTHS ENDED SEPTEMBER 30, 1995
Exhibit No.
3. By-Laws of the Registrant, as amended on September 26, 1995.
4. Registrant hereby agrees to furnish the Commission, upon
request, with the instruments defining the rights of holders
of each issue of long-term debt of the Registrant and its
consolidated subsidiaries.
10 (a). Retirement Agreement of Edward A. Brennan dated as of
August 9, 1995.
10 (b). Retirement Agreement of James M. Denny dated as of
August 9, 1995.
10 (c). Extension of employment contract of Arthur C. Martinez, dated
August 9, 1995.
10 (d). Recalculation of non-qualified pension benefit for
Arthur C. Martinez, dated November 8, 1995.
10 (e). Supplemental Long-Term Disability Plan of the Registrant, as
amended and restated on November 8, 1995.
10 (f). Directors Deferred Compensation Plan of the Registrant, as
amended and restated on November 8, 1995.
10 (g). Non-Employee Directors Retirement Plan of the Registrant, as
amended and restated on November 8, 1995.
12 (a). Computation of ratio of income to fixed charges for the Registrant
and consolidated subsidiaries for each of the five years ended
December 31, 1994 and for the nine- and twelve-month periods
ended September 30, 1995.
12 (b). Computation of ratio of income to combined fixed charges and
preferred share dividends for the Registrant and consolidated
subsidiaries for each of the five years ended December 31, 1994,
and for the nine- and twelve-month periods ended
September 30, 1995.
15. Acknowledgement of awareness from Deloitte & Touche, LLP, dated
November 9, 1995, concerning unaudited interim financial
information.
27. Financial Data Schedule.
99. Amendments to text of The Savings and Profit Sharing Fund of Sears
Employees adopted by the Board of Directors of the Registrant on
November 8, 1995.
<PAGE>
<TABLE>
Exhibit 12. (a)
COMPUTATION OF RATIO OF INCOME TO FIXED CHARGES
SEARS, ROEBUCK AND CO. AND CONSOLIDATED SUBSIDIARIES
<CAPTION>
Twelve Nine
Months Months
Ended Ended
Sept. 30, Sept. 30,
1995 1995 Year Ended December 31
(unaudited) (unaudited) 1994 1993 1992 1991 1990
(millions, except ratios)
<S>
Fixed Charges
Interest and amortization of debt discount <C> <C> <C> <C> <C> <C> <C>
and expense on all indebtedness $1,339 $1,025 $1,279 $1,318 $1,389 $1,568 $1,651
Add interest element implicit in rentals 116 90 114 105 165 155 147
1,455 1,115 1,393 1,423 1,554 1,723 1,798
Interest capitalized 2 4 1 3 23 22 16
Total fixed charges $1,457 $1,119 $1,394 $1,426 $1,577 $1,745 $1,814
Income (loss)
Income (loss) from continuing operations $926 $570 $857 $625 ($1,812) $160 ($45)
Deduct undistributed net income (loss)
of unconsolidated companies (2) 1 (7) 6 (5) (11) (8)
928 569 864 619 (1,807) 171 (37)
Add
Fixed charges (excluding interest capitalized) 1,455 1,115 1,393 1,423 1,554 1,723 1,798
Income taxes (benefit) 645 378 614 329 (1,039) 126 (13)
Income (loss) before fixed charges and
income taxes $3,028 $2,062 $2,871 $2,371 ($1,292) $2,020 $1,748
Ratio of income to fixed charges 2.08 1.84 2.06 1.66 (A) 1.16 0.96
<FN>
(A) As a result of the loss for the year ended December 31, 1992, earnings did not cover fixed charges by $2,869 million.
</FN>
</TABLE>
<PAGE>
<TABLE>
Exhibit 12. (b)
COMPUTATION OF RATIO OF INCOME TO COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDENDS
SEARS, ROEBUCK AND CO. AND CONSOLIDATED SUBSIDIARIES
<CAPTION>
Twelve Nine
Months Months
Ended Ended
Sept. 30, Sept. 30,
1995 1995 Year Ended December 31
(unaudited) (unaudited) 1994 1993 1992 1991 1990
(millions, except ratios)
<S>
Fixed Charges
Interest and amortization of debt discount <C> <C> <C> <C> <C> <C> <C>
and expense on all indebtedness $1,339 $1,025 $1,279 $1,318 $1,389 $1,568 $1,651
Add interest element implicit in rentals 116 90 114 105 165 155 147
1,455 1,115 1,393 1,423 1,554 1,723 1,798
Preferred dividend factor 135 76 234 209 120 7 -
Interest capitalized 2 4 1 3 23 22 16
Total fixed charges $1,592 $1,195 $1,628 $1,635 $1,697 $1,752 $1,814
Income (loss)
Income (loss) from continuing operations $926 $570 $857 $625 ($1,812) $160 ($45)
Deduct undistributed net income (loss)
of unconsolidated companies (2) 1 (7) 6 (5) (11) (8)
928 569 864 619 (1,807) 171 (37)
Add
Fixed charges (excluding interest capitalized
and preferred dividend factor) 1,455 1,115 1,393 1,423 1,554 1,723 1,798
Income taxes (benefit) 645 378 614 329 (1,039) 126 (13)
Income (loss) before fixed charges and
income taxes $3,028 $2,062 $2,871 $2,371 ($1,292) $2,020 $1,748
Ratio of income to combined fixed charges
and preferred share dividends 1.90 1.73 1.76 1.45 (A) 1.15 0.96
<FN>
(A) As a result of the loss for the year ended December 31, 1992, earnings did not cover fixed charges and preferred share
dividends by $2,989 million.
</FN>
</TABLE>
<PAGE>
Exhibit 15
To the Shareholders and Board of Directors
of Sears, Roebuck and Co.:
We have reviewed, in accordance with standards established by
the American Institute of Certified Public Accountants, the
unaudited interim financial information of Sears, Roebuck and
Co. for the three- and nine-month periods ended September 30,
1995 and October 1, 1994, as indicated in our report dated
November 9, 1995; because we did not perform an audit, we
expressed no opinion on that information.
We are aware that our report referred to above, which is
included in your Quarterly Report on Form 10-Q for the
nine-month period ended September 30, 1995, is incorporated by
reference in Registration Statement Nos. 2-64879, 2-80037,
33-18081, 33-23793, 33-41485, 33-43459, 33-45479, 33-55825 and
33-58851 of Sears, Roebuck and Co., Registration Statement Nos.
33-51361 and 33-57205 of Sears, Roebuck and Co. and The Savings
and Profit Sharing Fund of Sears Employees, Registration
Statement No. 33-58139 of Sears, Roebuck and Co. and Sears
Roebuck Acceptance Corp., and Registration Statement No.
33-44671 of Sears, Roebuck and Co. and Sears DC Corp.
We also are aware that the aforementioned report, pursuant to
Rule 436(c) under the Securities Act of 1933, is not considered
a part of the Registration Statement prepared or certified by an
accountant or a report prepared or certified by an accountant
within the meaning of Sections 7 and 11 of the Act.
Deloitte & Touche LLP
Chicago, Illinois
November 9, 1995
Exhibit 4(i)(E)
By-Laws
of
Sears, Roebuck and Co.
as amended to
September 26, 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 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.
The Compensation Committee shall review the financial affairs,
policies, practices and condition, and the design, funding and
investment policies, of the employee benefit plans of the Company and
its subsidiaries, 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 such
benefit plans and report and make such recommendations to the Board of
Directors as deemed appropriate.
Section 5. 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 6. 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.
Exhibit 10(a)
RETIREMENT AGREEMENT
This Retirement Agreement (the "Agreement") is entered into between
Sears, Roebuck and Co., a New York corporation (the "Company") and
Edward A. Brennan, a resident of the State of Illinois (the
"Executive") as of August 9, 1995.
This Agreement is hereby entered in consideration of the following
covenants and mutual promises.
1.Purpose. The Company has reviewed the performance of the
Executive during his term as Chairman and Chief Executive Officer
of the Company and has determined that his efforts have resulted in
significant value to the Company and its shareholders.
Specifically, the Executive oversaw development of the financial
services business, the restructuring of the merchandise business,
and the disposition of non-strategic assets of the Company,
culminating in the highly successful repositioning of the Company
through a series of initial public offerings, spin-offs and sales.
In consideration for the Executive's dedicated service with the
Company and his retirement from the Company on August 9, 1995 (the
"Retirement Date"), the Company and the Executive have agreed to
enter into this Agreement.
2.Payments. Following the execution of this Agreement, the Company
shall make the following payments to the Executive:
(a)Continued annual base salary payments through Executive's
Retirement Date, at the rate in effect immediately prior to the
Retirement Date.
(b)An amount (the "1995 Annual Bonus"), calculated according to the
Sears, Roebuck and Co. Annual Incentive Compensation Plan (the
"Annual Incentive Compensation Plan"), equal to the amount of the
annual Nondiscretionary Bonus under the Annual Incentive Compen-
sation Plan to which Executive would have been entitled if he had
remained employed by the Company through December 31, 1995. The
1995 Annual Bonus shall be paid at such time as the
Nondiscretionary Bonus would have been paid had Executive remained
employed by the Company.
(c)A lump sum severance payment payable on August 17, 1995, equal
to the sum of:
(i)the amount of annual base salary Executive would have been paid
for 1995 at the rate in effect immediately prior to his Retirement
Date (in addition to the amount described in Section 2(a)) if he
had remained employed by the Company through December 31, 1995, and
(ii) 2.06 times the sum of annual base salary at the rate in effect
immediately prior to the Retirement Date and the amount of the 1995
annual Nondiscretionary Bonus to which Executive would have been
entitled under the Annual Incentive Compensation Plan, assuming the
Company had met the requisite target incentive level in effect
immediately prior to the Executive's Retirement Date ("1995 Target
Level").
(d)The award under the Long Term Incentive Plan ("LTIP") for the LTIP
period January 1, 1993 through December 31, 1995 in the amount and at
the time such award would have been paid if Executive had continued
employment in the Company through December 31, 1995 pursuant to the Long
Term Incentive Compensation Plan.
3.Supplemental Retirement Income Plan. Executive's accrued benefit
under the Sears, Roebuck and Co. Supplemental Retirement Income Plan
(the "Supplemental Retirement Income Plan") shall be determined in
accordance with the Supplemental Retirement Income Plan, by calculating
the benefits thereunder based on (a) Executive's actual credited service
plus additional credited service for the period from the Retirement Date
through and including December 31, 1997, (b) the assumption that, in
addition to his actual annual salary and bonus, Executive had earned
annual salary (at the rate in effect immediately prior to the Retirement
Date) and bonus (at the 1995 Target Level) from his Retirement Date
through and including December 31, 1997, and (c) Executive's actual age
as of January 1, 1996, payable as a life annuity in monthly payments
commencing January 1, 1996. The present value of such benefit,
determined in accordance with the provisions of the Supplemental
Retirement Income Plan (and based on the Executive's actual age as of
January 1, 1996), shall be paid in a single lump sum payment on January
2, 1996. Such amount shall be in addition to the benefits to which
Executive is entitled under the Sears Pension Plan.
4.Post Retirement Medical Coverage. As of Executive's Retirement Date,
Executive shall be treated as eligible to receive Retiree Medical
coverage and for all purposes thereunder, shall be treated as having
been covered under a Sears medical option on Executive's Retirement Date
and as having been continuously covered for the ten (10) consecutive
years immediately prior to Executive's Retirement Date.
5.Post Retirement Life Insurance. As of Executive's Retirement Date,
Executive shall be treated as eligible to receive Retiree Life coverage
in the amount of $100,000 and for all purposes thereunder, shall be
treated as if Executive was a member of Group Life on October 31, 1992,
as having not been off payroll for more than twelve (12) consecutive
months since October 31, 1992 and as having continuous coverage between
August 31, 1987 and October 31, 1992. Executive may also continue Group
Universal Life Insurance coverage after Executive's Retirement Date by
paying any such premiums to the carrier.
6.Chairman's Retirement Benefits. In recognition of the Executive's
past services as Chairman of the Company, the following additional
benefits shall be provided, or the cost of such benefits reimbursed,
consistent with traditional benefits provided upon retirement to the
Chairman of the Company:
(a)An office with furnishings, secretarial and other assistance
consistent with past practice and suitable for Executive's needs until
December 31, 2005; and
(b)Fees for services consistent with current practice and suitable for
Executive's needs from a financial planner and tax advisor selected by
the Executive until December 31, 2000.
7.Equity. Effective August 17, 1995, all stock options and restricted
stock issued to the Executive under any Company-sponsored employee stock
plan will become fully vested and such stock options will remain
exercisable until the earlier of (i) five (5) years after Executive's
Retirement Date for stock options granted February, 1995, and two (2)
years after Executive's Retirement Date for all other stock options, or
(ii) the date the options would otherwise have expired under the terms
of the employee option grant (excluding provisions relating to
termination of employment).
8.Mutual Release. In consideration of the benefits provided under this
Agreement, Executive and the Company have entered into the Mutual
Release which is attached hereto as Exhibit A. This Mutual Release
shall for purposes of this Agreement be treated as incorporated into
this Section 8 in the form attached hereto.
9.Resignation of Officerships, Titles and Directorships. Effective on
the Executive's Retirement Date, the Executive resigns all officerships,
titles, and directorships with the Company, its subsidiaries and
affiliates.
10.Non-Competition, Nonsolicitation and Confidentiality. For the period
beginning on the date hereof and ending on December 31, 1997, the
Executive agrees that he will not (i) directly or indirectly seek to
employ on behalf of Executive or any other person or entity, any person
who is employed at the time by the Company; (ii) become employed by, be
or become an officer or director of, agree personally to perform
services for, or enter into a consulting arrangement with a Competitor
(as defined below); (iii) acquire an Ownership Interest (as defined
below) in a Competitor; or (iv) solicit any customer of the Company on
behalf of or for the benefit of a Competitor. Notwithstanding the
foregoing and the definition of Competitor, the Executive will not be in
violation of the foregoing sentence solely by reason of Executive's
being an employee, partner, officer, or director of, or investor in, a
Financial Firm (as defined below) that holds an investment in a
Competitor, and the Company approves the Executive's continuing to serve
as a director of Dean Witter, Discover & Co. and The Allstate
Corporation, unless there is a change after the date hereof in the
business activities or affiliations of either of such corporations,
which change would itself cause such corporation to fall within the
definition of Competitor. The Executive further agrees not to disclose,
in any manner except to authorized representatives of the Company or
when compelled by legal process after notice to the Company (if such
notice is feasible by a good faith effort), information about or related
to the Company that was obtained by the Executive during his employment
with the Company, other than information generally available to the
public.
For purposes of this Section 10,
(a)"Competitor" means any business organization (including any entity
that controls, is controlled by, or is under common control with such
organization) that Materially Competes with the Company in any line of
business, including but not limited to any business involving the sale
of merchandise and/or merchandise related services at retail, such as a
department, specialty, home improvement, apparel, automotive parts and
accessories, or appliance store;
(b) "Financial Firm" means any firm or fund that makes venture capital
or other investments, or that engages in investment banking, the mutual
fund business, or the securities business;
(c) "Materially Competes" means that the organization in question, as
of the date that the Executive would be in violation of the provisions
of this Section 10 if such organization is a Competitor, received in its
last full fiscal year more than $50 million and more than 10% of its
total revenues from business activities that compete with the Company,
and the Company received in 1994 or 1995 consolidated revenues in excess
of $100 million from such competitive business activities; and
(d) "Ownership Interest" means an equity or voting interest in a
Competitor in excess of five percent (5%) of the total outstanding
equity or voting interests of any class or type that has been issued by
such Competitor, including (for purposes of determining such 5%) any
indirect interest held by the Executive in such Competitor. For
purposes hereof, an "indirect interest" means the Executive's share of
an equity or voting interest in a Competitor represented by his share of
the investment of a Financial Firm in such Competitor.
11.D & O Insurance Coverage. The Company shall cause Executive to be
covered under such director and officer liability insurance policies as
the Company shall from time to time have in effect for its then-active
officers and directors to the same extent, with respect to acts, errors
or omissions which shall have occurred on or before Executive's
Retirement Date, as available thereunder to the then-active officers and
directors.
12.Beneficiary. If the Executive should die prior to receiving all of
the benefits payable under this Agreement, any remaining benefits will
be paid to the beneficiary which is designated in writing by the
Executive. If no such beneficiary is designated, any payments shall be
paid to the Executive's estate at the time or times and in the manner as
would otherwise be due to the Executive.
13.Withholding. The Company's obligation to pay amounts under this
Agreement are subject to its withholding obligations under applicable
federal, state and local tax laws.
14.Severability. If all or any part of this Agreement is declared by
any court or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity shall not invalidate any other portion of
this Agreement. Any section or a part of a section declared to be
unlawful or invalid shall, if possible, be construed in a manner which
will give effect to the terms of the section to the fullest extent
possible while remaining lawful and valid.
15.Amendment. This Agreement shall not be altered, amended, or modified
except by written instrument executed by the Company and the Executive.
A waiver of any portion of this Agreement shall not be deemed a waiver
of any other portion of this Agreement.
16.Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same instrument.
17.Applicable Law. The provisions of this Agreement shall be
interpreted and construed in accordance with the laws of the State of
Illinois without regard to its choice of law principles.
SEARS, ROEBUCK AND CO.
By: /s/ DAVID SHUTE
Its: Senior Vice President
ATTEST:
Patricia M. Jamieson
Assistant Secretary
EXECUTIVE:
/s/ EDWARD A. BRENNAN
<PAGE>
EXHIBIT A
Mutual Release
In consideration of the benefits provided under that certain Retirement
Agreement dated as of August 9, 1995 (the "Agreement") by and between
Sears, Roebuck and Co. (the "Company") and the undersigned Executive,
Executive and the Company, and any person acting by, through, or under
the Executive or the Company, hereby release, waive, and forever
discharge each other, their agents, subsidiaries, affiliates, employees,
officers, shareholders, successors, and assigns (if any) from any and
all liability, actions, charges, causes of action, demands, damages, or
claims for relief or remuneration of any kind whatsoever, whether known
or unknown at this time, arising out of, or connected with, Executive's
employment with the Company (other than indemnification to which the
Executive may be entitled under the Company's bylaws, policies or
agreements (now or hereafter maintained) with regard to the
indemnification of its executive officers or directors), Executive's
decision to retire, and/or the termination of the Executive's
employment, including, but not limited to, all matters in law, in
equity, in contract, or in tort, or pursuant to statute, including any
claim by Executive for age or other types of discrimination under the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act
of 1964, the Americans With Disabilities Act, or any other federal,
state, or local law or ordinance (the foregoing is sometimes hereinafter
referred to as the "Waiver"). The Waiver does not apply to any rights
or claims that may arise under the Age Discrimination in Employment Act
after the date that Executive signs this Agreement. Executive
acknowledges that he has read the Waiver and is voluntarily executing
the Waiver and the Agreement.
Executive acknowledges that he has been advised to consult with an
attorney prior to signing the Waiver, and was given at least twenty one
(21) days within which to consider the Agreement, including the Waiver,
before signing the Waiver and the Agreement. Executive also
acknowledges that he understands that if he signs the Waiver, he may
revoke the Waiver and the Agreement within seven (7) days after signing
the Waiver. The Agreement and the Waiver will therefore not be
effective until seven (7) days after the Waiver is signed.
The Waiver does not apply to any benefits provided in the Agreement or
any benefits to which the Executive may be entitled under a Company-
sponsored benefit plan.
Executed: August 9, 1995
SEARS, ROEBUCK AND CO.
By: /s/David Shute
Its: Senior Vice President
ATTEST:
Patricia M. Jamieson
Assistant Secretary
EXECUTIVE:
/s/ EDWARD A. BRENNAN
Exhibit 10(b)
RETIREMENT AGREEMENT
This Retirement Agreement (the "Agreement") is entered into between
Sears, Roebuck and Co., a New York corporation (the "Company") and James
M. Denny, a resident of the State of Illinois (the "Executive") as of
August 9, 1995.
This Agreement is hereby entered in consideration of the following
covenants and mutual promises.
1.Purpose. The Company has reviewed the performance of the Executive
during his employment with the Company and has determined that his
efforts have resulted in significant value to the Company and its
shareholders. Specifically, the Executive assisted the Chairman and
Chief Executive Officer in overseeing the development of the financial
services business, the restructuring of the merchandise business, and
the disposition of non-strategic assets of the Company, culminating in
the highly successful repositioning of the Company through a series of
initial public offerings, spin-offs and sales. In consideration for the
Executive's dedicated service with the Company and his retirement from
the Company on August 9, 1995 (the "Retirement Date"), the Company and
the Executive have agreed to enter into this Agreement.
2.Payments. Following the execution of this Agreement, the Company
shall make the following payments to the Executive:
(a)Continued annual base salary payments through Executive's Retirement
Date, at the rate in effect immediately prior to the Retirement Date.
(b)An amount (the "1995 Annual Bonus"), calculated according to the
Sears, Roebuck and Co. Annual Incentive Compensation Plan (the "Annual
Incentive Compensation Plan"), equal to the amount of the annual
Nondiscretionary Bonus under the Annual Incentive Compen-sation Plan to
which Executive would have been entitled if he had remained employed by
the Company through December 31, 1995. The 1995 Annual Bonus shall be
paid at such time as the Nondiscretionary Bonus would have been paid had
Executive remained employed by the Company.
(c)A lump sum severance payment payable on August 17, 1995, equal to the
sum of:
(i) the amount of annual base salary Executive would have been paid for
1995 at the rate in effect immediately prior to his Retirement Date (in
addition to the amount described in Section 2(a)) if he had remained
employed by the Company through December 31, 1995, and
(ii) 2 times the sum of annual base salary at the rate in effect
immediately prior to the Retirement Date and the amount of the 1995
annual Nondiscretionary Bonus to which Executive would have been
entitled under the Annual Incentive Compensation Plan, assuming the
Company had met the requisite target incentive level in effect
immediately prior to the Executive's Retirement Date("1995 Target
Level").
(d)The award under the Long Term Incentive Plan ("LTIP") for the LTIP
period January 1, 1993 through December 31, 1995 in the amount and at
the time such award would have been paid if Executive had continued
employment in the Company through December 31, 1995 pursuant to the Long
Term Incentive Compensation Plan.
3.Supplemental Retirement Income Plan. Executive's accrued benefit
under the Sears, Roebuck and Co. Supplemental Retirement Income Plan
(the "Supplemental Retirement Income Plan") shall be determined in
accordance with the Supplemental Retirement Income Plan, by calculating
the benefits thereunder based on (a) Executive's actual credited service
plus additional credited service for the period from the Retirement Date
through and including December 31, 1997, plus the additional 5 years of
credited service previously credited to Executive, (b) the assumption
that, in addition to his actual annual salary and bonus, Executive had
earned annual salary (at the rate in effect immediately prior to the
Retirement Date) and bonus (at the 1995 Target Level) from his
Retirement Date through and including December 31, 1997, and (c)
Executive's actual age as of January 1, 1996 plus three years (pursuant
to a prior agreement to add three years to Executive's attained age),
payable as a life annuity in monthly payments commencing January 1,
1996. The present value of such benefit, determined in accordance with
the provisions of the Supplemental Retirement Income Plan (and based on
the Executive's actual age as of January 1, 1996), shall be paid in a
single lump sum payment on January 2, 1996. Such amount shall be in
addition to the benefits to which Executive is entitled under the Sears
Pension Plan.
4.Post Retirement Medical Coverage. As of Executive's Retirement Date,
Executive shall be treated as eligible to receive Retiree Medical
coverage and for all purposes thereunder, shall be treated as having
been covered under a Sears medical option on Executive's Retirement Date
and as having been continuously covered for the ten (10) consecutive
years immediately prior to Executive's Retirement Date.
5.Post Retirement Life Insurance. As of Executive's Retirement Date,
Executive shall be treated as eligible to receive Retiree Life coverage
in the amount of $100,000 and for all purposes thereunder, shall be
treated as if Executive was a member of Group Life on October 31, 1992,
as having not been off payroll for more than twelve (12) consecutive
months since October 31, 1992 and as having continuous coverage between
August 31, 1987 and October 31, 1992. Executive may also continue Group
Universal Life Insurance coverage after Executive's Retirement Date by
paying any such premiums to the carrier.
6.Equity. Effective August 17, 1995, all stock options and restricted
stock issued to the Executive under any Company-sponsored employee stock
plan will become fully vested and such stock options will remain
exercisable until the earlier of (i) five (5) years after Executive's
Retirement Date for stock options granted February, 1995, and two (2)
years after Executive's Retirement Date for all other stock options, or
(ii) the date the options would otherwise have expired under the terms
of the employee option grant (excluding provisions relating to
termination of employment).
7.Mutual Release. In consideration of the benefits provided under this
Agreement, Executive and the Company have entered into the Mutual
Release which is attached hereto as Exhibit A. This Mutual Release
shall for purposes of this Agreement be treated as incorporated into
this Section 7 in the form attached hereto.
8.Resignation of Officerships, Titles and Directorships. Effective on
the Executive's Retirement Date, the Executive resigns all officerships,
titles, and directorships with the Company, its subsidiaries and
affiliates.
9.Non-Competition, Nonsolicitation and Confidentiality. For the period
beginning on the date hereof and ending on December 31, 1997, the
Executive agrees that he will not (i) directly or indirectly seek to
employ on behalf of Executive or any other person or entity, any person
(except Executive's Senior Executive Secretary as of the date hereof)
who is employed at the time by the Company; (ii) become employed by, be
or become an officer or director of, agree personally to perform
services for, or enter into a consulting arrangement with a Competitor
(as defined below); (iii) acquire an Ownership Interest (as defined
below) in a Competitor; or (iv) solicit any customer of the Company on
behalf of or for the benefit of a Competitor. Notwithstanding the
foregoing and the definition of Competitor, the Executive will not be in
violation of the foregoing sentence solely by reason of Executive's
being an employee, partner, officer, or director of, or investor in, a
Financial Firm (as defined below) that holds an investment in a
Competitor, and the Company approves the Executive's (a) employment by
and partnership in William Blair Capital Partners Fund V, and (b)
continuing to serve as a director of The Allstate Corporation, unless
there is a change after the date hereof in the business activities or
affiliations of The
Allstate Corporation, which change would itself cause such corporation
to fall within the definition of Competitor. The Executive further
agrees not to disclose, in any manner except to authorized
representatives of the Company or when compelled by legal process after
notice to the Company (if such notice is feasible by a good faith
effort), information about or related to the Company that was obtained
by the Executive during his employment with the Company, other than
information generally available to the public.
For purposes of this Section 10,
(a)"Competitor" means any business organization (including any entity
that controls, is controlled by, or is under common control with such
organization) that Materially Competes with the Company in any line of
business, including but not limited to any business involving the sale
of merchandise and/or merchandise related services at retail, such as a
department, specialty, home improvement, apparel, automotive parts and
accessories, or appliance store;
(b) "Financial Firm" means any firm or fund that makes venture capital
or other investments, or that engages in investment banking, the mutual
fund business, or the securities business;
(c) "Materially Competes" means that the organization in question, as
of the date that the Executive would be in violation of the provisions
of this Section 10 if such organization is a Competitor, received in its
last full fiscal year more than $50 million and more than 10% of its
total revenues from business activities that compete with the Company,
and the Company received in 1994 or 1995 consolidated revenues in excess
of $100 million from such competitive business activities; and
(d) "Ownership Interest" means an equity or voting interest in a
Competitor in excess of five percent (5%) of the total outstanding
equity or voting interests of any class or type that has been issued by
such Competitor, including (for purposes of determining such 5%) any
indirect interest held by the Executive in such Competitor. For
purposes hereof, an "indirect interest" means the Executive's share of
an equity or voting interest in a Competitor represented by his share of
the investment of a Financial Firm in such Competitor.
10.D & O Insurance Coverage. The Company shall cause Executive to be
covered under such director and officer liability insurance policies as
the Company shall from time to time have in effect for its then-active
officers and directors to the same extent, with respect to acts, errors
or omissions which shall have occurred on or before Executive's
Retirement Date, as available thereunder to the then-active officers and
directors.
11.Beneficiary. If the Executive should die prior to receiving all of
the benefits payable under this Agreement, any remaining benefits will
be paid to the beneficiary which is designated in writing by the
Executive. If no such beneficiary is designated, any payments shall be
paid to the Executive's estate at the time or times and in the manner as
would otherwise be due to the Executive.
12.Withholding. The Company's obligation to pay amounts under this
Agreement are subject to its withholding obligations under applicable
federal, state and local tax laws.
13.Severability. If all or any part of this Agreement is declared by
any court or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity shall not invalidate any other portion of
this Agreement. Any section or a part of a section declared to be
unlawful or invalid shall, if possible, be construed in a manner which
will give effect to the terms of the section to the fullest extent
possible while remaining lawful and valid.
14.Amendment. This Agreement shall not be altered, amended, or modified
except by written instrument executed by the Company and the Executive.
A waiver of any portion of this Agreement shall not be deemed a waiver
of any other portion of this Agreement.
15.Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same instrument.
16.Applicable Law. The provisions of this Agreement shall be
interpreted and construed in accordance with the laws of the State of
Illinois without regard to its choice of law principles.
SEARS, ROEBUCK AND CO.
By: /s/ DAVID SHUTE
Its: Senior Vice President
ATTEST:
Patricia M. Jamieson
Assistant Secretary
EXECUTIVE:
/s/JAMES M. DENNY
<PAGE>
EXHIBIT A
Mutual Release
In consideration of the benefits provided under that certain Retirement
Agreement dated as of August 9, 1995 (the "Agreement") by and between
Sears, Roebuck and Co. (the "Company") and the undersigned Executive,
Executive and the Company, and any person acting by, through, or under
the Executive or the Company, hereby release, waive, and forever
discharge each other, their agents, subsidiaries, affiliates, employees,
officers, shareholders, successors, and assigns (if any) from any and
all liability, actions, charges, causes of action, demands, damages, or
claims for relief or remuneration of any kind whatsoever, whether known
or unknown at this time, arising out of, or connected with, Executive's
employment with the Company (other than indemnification to which the
Executive may be entitled under the Company's bylaws, policies or
agreements (now or hereafter maintained) with regard to the
indemnification of its executive officers or directors), Executive's
decision to retire, and/or the termination of the Executive's
employment, including, but not limited to, all matters in law, in
equity, in contract, or in tort, or pursuant to statute, including any
claim by Executive for age or other types of discrimination under the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act
of 1964, the Americans With Disabilities Act, or any other federal,
state, or local law or ordinance (the foregoing is sometimes hereinafter
referred to as the "Waiver"). The Waiver does not apply to any rights
or claims that may arise under the Age Discrimination in Employment Act
after the date that Executive signs this Agreement. Executive
acknowledges that he has read the Waiver and is voluntarily executing
the Waiver and the Agreement.
Executive acknowledges that he has been advised to consult with an
attorney prior to signing the Waiver, and was given at least twenty one
(21) days within which to consider the Agreement, including the Waiver,
before signing the Waiver and the Agreement. Executive also
acknowledges that he understands that if he signs the Waiver, he may
revoke the Waiver and the Agreement within seven (7) days after signing
the Waiver. The Agreement and the Waiver will therefore not be
effective until seven (7) days after the Waiver is signed.
The Waiver does not apply to any benefits provided in the Agreement or
any benefits to which the Executive may be entitled under a Company-
sponsored benefit plan.
Executed: August 9, 1995
SEARS, ROEBUCK AND CO.
By: /s/ DAVID SHUTE
Its: Senior Vice President
ATTEST:
Patricia M. Jamieson
Assistant Secretary
EXECUTIVE:
/s/ JAMES M. DENNY
Exhibit 10(c)
AGREEMENT for CONTINUED EMPLOYMENT
Between
SEARS, ROEBUCK AND CO. and ARTHUR C. MARTINEZ
Sears, Roebuck and Co., and New York corporation having its principal
place of business in [Hoffman Estates][Chicago], Illinois (the
"Company"), and Arthur C. Martinez, a resident of the State of
[Connecticut][Illinois] (the "Executive") entered into an Employment
Agreement ("Agreement") dated August 10, 1992.
The term of the Agreement expires August 31, 1995, and the parties
expect to enter into a new employment agreement on or before December 1,
1995.
In order to give the parties an opportunity for measured consideration
of such new employment agreement, the Company and the Executive wish to
enter into this agreement ("Continuation Agreement") to continue
Executive's employment after the expiration of the Agreement, on
substantially the same terms and conditions as under the Agreement,
until the earlier of December 1, 1995 or the date a new employment
agreement takes effect.
Accordingly, the Company and the Executive agree as follows:
1.The term of this Continuation Agreement shall commence on September 1,
1995, and, unless sooner terminated, shall end on December 1, 1995.
2.Executive will continue to be employed by the Company during the term
of this Continuation Agreement on the same terms and conditions as
during the term of the Agreement, except as provided in paragraph 3, and
except that, effective August 9, 1995, Executive shall serve as Chairman
and Chief Executive Officer of the Company.
3.The Executive shall be entitled to payment of the Guaranteed Past-
Service Pension (as defined in the Agreement) in a lump sum, provided
that the Executive irrevocably elects in writing during the term of this
Continuation Agreement to receive payment in a lump sum.
IN WITNESS WHEREOF, the parties have executed this amendment on this 9th
day of August, 1995.
SEARS, ROEBUCK AND CO.
By: /s/ DAVID SHUTE
Its: Senior Vice President
/s/ Arthur C. Martinez
ARTHUR C. MARTINEZ
Exhibit 10(d)
SEARS ROEBUCK AND CO.
SUPPLEMENTAL LONG-TERM DISABILITY PLAN
Effective Date - The name of this plan is the Sears, Roebuck and Co.
Supplemental Long-Term Disability Plan ("the Plan"), with an effective
date of January 1, 1995. The Plan supersedes the Plan of the same name
which has been in effect since September 1, 1987, except for those
employees who are receiving or who are in the Waiting Period to receive
benefits under that Plan.
ERISA Status and Eligibility - The Plan is unfunded and is maintained
primarily for the purpose of providing supplemental long-term disability
benefits to a select group of management or highly-compensated employees
(within the meaning of sections 201(a)(2), 301(a)(3) and 401(a)(1) of
the Employee Retirement Income Security Act of 1974, as amended).
Salaried employees of Sears, Roebuck and Co. ("Sears") or a wholly-owned
(except for directors' qualifying shares) subsidiary of Sears (herein
called the "Employer") are eligible to participate in this Plan if their
salary exceeds the Minimum Annualized Salary Requirement ("employees").
"Minimum Annualized Salary Requirement" is that level of annual earnings
received from the Employer which would produce the maximum monthly
benefit payable under the Basic Plan. Employees of Sears become
eligible on January 1, 1995. Employees of Sears wholly-owned
subsidiaries become eligible according to action taken by those
subsidiaries which adopt the Plan.
The "Basic Plan," as used herein, means Long-Term Disability coverage
provided under any group insurance policy(ies) issued to the Employer.
The employee must be performing full-time the duties of his (her)
position in order to be eligible. Otherwise, the employee will become
eligible immediately upon return to Active Work.
Plan Administration - Sears administers the Plan through the Sears
Benefits Department. Sears has the authority to delegate the process of
claims investigation.
Termination of Coverage - Coverage will terminate on the earliest of:
the date employment terminates;
the date the employee is placed on an approved unit closing, layoff,
military or personal leave of absence;
the date this Plan terminates or is modified to terminate coverage for
the class of employees of which the employee is a member; the date the
employee ceases to be eligible for coverage; or the date of the
employee's death.
Payment of Benefits - Benefits will be paid from the general revenues of
Sears to its employees and by each subsidiary to its employees as
provided herein. Benefits will be paid to the employee, or if the
employee has died, any applicable benefits remaining will be paid to the
employee's estate. No person who is entitled to any benefits under the
Plan shall have any preferred claim on or any interest in any assets of
Sears and any rights of such person under the Plan shall constitute
unsecured contractual rights of a general creditor. Long-Term Disability
(LTD) Provisions - Employees will be paid a monthly benefit when proof
is received that:
the employee has become Totally Disabled on or after January 1, 1995,
while covered for Supplemental LTD;
the employee has continued to be Totally Disabled for the duration of
the Waiting Period;
subsequent to the Waiting Period the employee continues to be Totally
Disabled; and
the employee is under the regular care of a legally qualified Physician.
The payment of monthly benefits is subject to all other applicable
conditions in this Plan.
Monthly benefits are paid each month, after completion of the Waiting
Period, for full or partial months of Total Disability. For each day of
a partial month, 1/30th of a full month's benefit is payable.
Meaning of Total Disability - "Total Disability" means that due to
Sickness or Injury, the employee is unable to perform the material
duties of his (her) occupation with his (her) Employer during the
Waiting Period and during the next 24 months. Thereafter, the employee
must be totally incapable due to Sickness or Injury from performing the
material duties of any gainful occupation for which the employee is
reasonably fit based on training, education or experience.
Waiting Period - If the employee is Totally Disabled due to the same or
related Sickness or Injury for that period of time defined as the
Waiting Period under the Basic Plan, the employee will have completed
the Waiting Period under this Plan.
If after a period of Total Disability for which monthly benefits were
payable, the employee returns to Active Work and subsequently becomes
Totally Disabled, then the employee may be required to complete another
Waiting Period.
If the subsequent period of Total Disability is:
due to the same or related causes and begins more than six consecutive
months after the employee returns to Active Work; or
due to entirely unrelated causes,
then the subsequent period will be treated as a new disability.
Benefits for this period of Total Disability will begin after completion
of the new Waiting Period, and may be paid for the Maximum Benefit
Period, subject to all other conditions included in this Plan.
If the subsequent period of Total Disability begins within six
consecutive months following the employee's return to Active Work, and
it is due to the same or related causes, it will be treated as a
continuing disability subject to all other applicable conditions in this
Plan. With submission of proof of Total Disability, benefits will
resume immediately without a new Waiting Period, and the Maximum Benefit
Period will apply to the total benefits in all periods.
Monthly Benefit - The monthly benefit payable from this Plan while the
employee is Totally Disabled is equal to:
60% of Basic Monthly Earnings reduced by the maximum monthly benefit
payable under the Basic Plan. This reduction applies regardless of the
employee's participation or nonparticipation in the Basic Plan.
Rehabilitative Employment - If, after completion of the Waiting Period,
the employee is Totally Disabled and engaged in any program of
Rehabilitative Employment for wage or profit, approved in writing in
advance, the monthly benefit payable will be reduced by 50% of the
amount of such wage or profit.
The monthly benefit remains payable for the period the employee engages
in Rehabilitative Employment, subject to a maximum of 24 months and all
other conditions included in this Plan.
Basic Monthly Earnings - "Basic Monthly Earnings" is equal to 1/12th of
the employee's Current Annualized Compensation. "Current Annualized
Compensation" is the employee's current monthly salary multiplied by 12
plus the most recent annual cash bonus award paid the employee, if any,
by the Employer in the last 14 consecutive months. In the event of
disability, Current Annualized Compensation is the same as it was on the
employee's last day of Active Work. If, under the terms of any Employer
Plan, the employee elects to defer any of this compensation, then for
purposes of calculating Current Annualized Compensation it will be
treated as if it were not deferred.
Current Annualized Compensation does not include: (i) awards under any
long-term executive compensation plan; (ii) performance units or
restricted share awards under any incentive compensation plan; (iii)
moving bonuses or allowances, or payments or reimbursements in
connection with moving expenses; (iv) any incremental increases or
earnings under deferred compensation plans; (v) amounts, including
bonuses, paid after death, disability or retirement; (vi) Employer-paid
premiums on any insurance plan; (vii) Employer contributions under any
profit sharing, profit participation or stock plan; (viii) long-term
disability, medical, retirement and profit sharing benefits; (ix) prizes
or awards; (x) retainers; (xi) living expense allowances; (xii) special
geographic differentials; (xiii) dividends paid with respect to shares
of restricted stock; (xiv) service allowances and payments for vacations
earned but not taken; (xv) overseas compensation adjustments; (xvi) one-
time awards for special merit or achievement; (xvii) compensation earned
through the exercise of stock options, or stock appreciation rights and
tax benefit rights relating to stock options; or (xviii) any other
similar or special type of compensation.
Maximum Benefit Period - Monthly benefits for Total Disability are paid
as follows:
Age at Disability Maximum Benefit Period
Up to and including To Age 65 or 31 Months,
Age 63 whichever is later
64 31 Months
65 31 Months
66 31 Months
67 31 Months, but not beyond
Age 70
68 To Age 70
69 and over 12 Months
Notwithstanding the above, any employee in a bona fide executive or high
policy-making position as defined in the Rules promulgated under the Age
Discrimination in Employment Act will not receive LTD benefit payments
beyond the end of the month in which the employee becomes age 65.
Limitations - No monthly benefit is payable for:
a disability caused by an Injury that was intentionally self-inflicted
while sane or insane;
a disability due to a mental and nervous disorder beyond the next 24
months following completion of the Waiting Period unless the employee is
confined in a hospital or other similar institution licensed to provide
care and treatment for such disorders. The monthly benefit will
continue only during the time that the employee is confined, and will
cease immediately upon discharge. The employee will not be eligible for
any further benefits for that disability. Payment of monthly benefits
is still subject to the Maximum Benefit Period.
A disability is due to a mental and nervous disorder if:
it is due to mental or emotional disease or disorder of any kind,
including but not limited to neurosis, psychoneurosis, psychopathy,
psychosis; and the employee would not be Totally Disabled in the absence
of the mental and nervous disorder;
any period of disability caused by participation in or in consequence of
having participated in the commission of a felony;
any period of disability resulting from war, declared or undeclared,
insurrections, or voluntary participation in a riot;
any period of disability resulting from and arising while in service in
any military, naval or air force of any country or international
organization, or in any auxiliary or civilian noncombatant unit serving
with such forces; or a disability during which the employee is engaged
in any occupation or business for wage or profit. However, this
Limitation does not apply to (i) any program of Rehabilitative
Employment as described above, or (ii) any occupation or business in
which the employee receives less than $100 per calendar year.
Claim Forms - Written notice of a claim must be submitted within 20 days
after completion of the Waiting Period, or as soon as is reasonably
possible. Upon submission of a notice of a claim, the employee will be
sent forms for filing proof of loss. If these forms are not received by
the employee within 15 days, the employee will meet the proof of loss
requirements by filing a written statement of the nature and extent of
the loss within the time limit stated in the "Proof of Loss" paragraph.
Forms for filing a claim can also be obtained from the employee's
Personnel Department.
Proof of Loss - For periodic payment for a continuing disability,
written proof covering the occurrence, character, and extent of loss
must be submitted within 90 days after the end of each period for which
benefits are payable, or less frequently if requested.
If it was not reasonably possible to give written proof in the time
required, the claim will not be denied for this reason if the proof is
filed as soon as reasonably possible. In all cases, however, the proof
required must be given no later than one year from the time specified
unless the employee was legally incapacitated.
Definitions - "Actively at Work" or "Active Work" means that the
employee is performing full-time for his (her) Employer the duties of
his (her) employment at the place and in the manner in which the duties
of his (her) employment are usually and customarily performed.
"Injury" means accidental bodily injury.
"Physician" means a person who is licensed or otherwise legally
authorized to administer medical care or treatment so long as (s)he is
acting within the scope of his (her) license or authorization.
Physician also means an accredited Christian Science practitioner listed
in the current issue of the Christian Science Journal.
"Sickness" means pregnancy or any disease which causes or contributes to
a deterioration in the state of health of the afflicted person.
GENERAL INFORMATION
Misstatements or Clerical Error - If the employee's age is misstated,
the benefits will be adjusted as necessary. If the coverage amount is
affected by the misstated age, it will also be adjusted to the amount
the employee is entitled to at his (her) correct age.
A clerical error will not void coverage nor will it continue coverage
which should have ended. When an error is found, a fair adjustment will
be made.
No Effect on Worker's Compensation - These provisions are not in lieu of
and do not affect any requirements for coverage by Workers' or Workmen's
Compensation Insurance.
Assignment - The benefits under the Plan are not assignable.
Physical Examinations - At any time during a claim, the employee may be
medically examined as often as reasonably required for determination of
the employee's eligibility for continued benefits. The employee is not
liable for any expenses regarding these examinations.
Right of Recovery - If payments have been made in excess of the maximum
amount payable under this Plan, the benefit provider has the right to
recover the amount of the excess from the employee, the employee's
estate, or the person to whom payments were made.
Facility of Payment - If any benefit under this Plan becomes payable,
and the employee is:
in the opinion of Sears, legally incapable of giving valid receipt of
any payment due and a request has not been received from a legally
appointed representative,
then payment may be made not to exceed $2,000 to an individual or
institution believed to have assumed custody or principal support of the
employee.
Any payment made in good faith under this provision will fully discharge
the benefit provider to the extent of the payment.
Incontestability - For disability or loss which occurs after the
employee has been covered for two years, no claim may be reduced or
denied on the ground that the condition causing the claim existed when
the employee's coverage became effective unless the condition is
specifically excluded from coverage.
Termination of the Plan - This Plan should not be interpreted as a
contract or insurance policy and does not create any rights to
continuance of the Plan in favor of employees. Accordingly, the Plan
may be terminated, modified, suspended or amended by Sears in whole or
in part at any time without the consent of the employees.
Applicable Laws - The Plan shall be construed and administered in
accordance with the laws of the State of Illinois.
Exhibit 10(e)
SEARS, ROEBUCK AND CO.
DEFERRED COMPENSATION PLAN
FOR DIRECTORS
as amended and restated on November 8, 1995
1. PURPOSE
The purpose of this Plan is to offer non-employee members of the Board
of Directors the opportunity to defer receipt of their directors'
compensation, as an incentive to their continued participation as
directors of Sears, Roebuck and Co.
2.DEFINITIONS
a."Beneficiary" shall mean the person or persons designated from time to
time in writing by a Participant to receive payments under the Plan
after the death of such Participant, or, in the absence of any such
designation or in the event that such designated person or persons shall
predecease such Participant, his estate.
b."Common Share Unit" shall mean a Deferred Amount which is converted
into a unit or fraction of a unit for purposes of the Plan by dividing a
dollar amount by the Fair Market Value of one of the Company's common
shares.
c."Company" shall mean Sears, Roebuck and Co.
d."Compensation" shall mean payments which the Participant receives from
the Company for services, including retainer fees and meeting fees.
e."Deferred Amount" shall mean an amount of Compensation deferred under
the Plan and carried during the deferral period in any Account provided
for in the Plan.
f."Distribution Date" shall mean the date designated by a Participant in
the Notice of Election form for distribution of Accounts.
g."Dividend Equivalent" shall mean an amount equal to the cash dividend
paid on one of the Company's common shares credited to an Account for
each Common Share Unit credited to such Account.
h."Equity Index" shall mean the Standard & Poor's 500 Composite Stock
Price Index which is a market value-weighted index consisting of 500
common stocks of large U.S. domiciled companies selected by Standard and
Poor's Corporation ("S&P") through a detailed screening process starting
on a macro-economic level and working toward a micro-economic level
dealing with company specific information such as market value, industry
group classification, capitalization and trading activity. S&P's
primary objective for the S&P Index is to represent the segment of the
U.S. equity securities markets consisting of large market capitalization
stocks. However, companies are not selected by S&P for inclusion because
they are expected to have superior stock price performance relative to
the market in general or other stocks in particular.
i."Fair Market Value" shall mean the closing price of the Company's
common shares as reported by the Wall Street Journal or other comparable
source in a summary of composite
transactions for stocks listed on the New York Stock Exchange.
j."Hardship" shall mean an emergency or unexpected situation in the
Participant's financial affairs including, but not limited to, illness
or accident involving the Participant or his/her dependents which, in
the opinion of the Compensation Committee of the Board of Directors of
the Company, presents a severe economic difficulty to the Participant,
due to which a distribution of the Account balance is appropriate.
k."Fixed Income Index" shall mean the Lehman Brothers Aggregate Bond
Index, except for debt securities of Sears or Allstate (as defined
below), which is made up of the Lehman Government/Corporate Bond Index
("Bond Index"), the Lehman Mortgage-Backed Securities Index ("Mortgage-
Backed Securities Index"), and the Lehman Asset-Backed Securities Index
("Asset-Backed Securities Index"). The Bond Index is a composite of all
publicly issued, fixed rate, nonconvertible, domestic bonds. The issues
are rated investment grade or higher by Moody's Investors Service, Inc.,
S&P, or Fitch Investors Service, Inc., in that order, have a minimum
outstanding principal of $100 million for U.S. Government issues or $50
million for other bonds, and have a maturity of at least one year. The
index is capitalization-weighted. The Mortgage-Backed Securities Index
includes 15- and 30-year fixed rate securities backed by mortgage pools
of the Government National Mortgage Association, the Federal Home Loan
Mortgage Corporation, and the Federal National Mortgage Association.
Graduated payment mortgages and balloon mortgages are included in the
index; buydown, manufactured homes and graduated equity mortgages are
not. The Asset-Backed Securities Index is composed of credit card,
auto, and home equity loans. Included in the index are pass-through,
bullet (noncallable), and controlled amortization structures; no
subordination tranches are included. All securities have an average
life of at least one year.
l."Non-Employee Director" shall mean any duly elected or appointed
member of the Board of Directors of the Company who is not an employee
of the Company or of any subsidiary of the Company.
m."Participant" shall mean any Non-Employee Director who elects to defer
any amount of Compensation under the Plan.
n."Plan" shall mean the Sears, Roebuck and Co., Deferred Compensation
Plan for Directors.
o."Secretary" shall mean the duly elected Secretary of the Company.
3.ELECTION TO DEFER COMPENSATION
Each Participant may elect to defer the payment of all or any part of
his or her Compensation by executing and delivering to the Secretary a
Notice of Election, in the form attached hereto and incorporated herein
by this reference. Such election shall be applicable only to
Compensation payable on or after the first day of the month following
the month in which such Notice of Election is received by the Secretary.
An election to defer payment of Compensation shall continue in effect
until revoked by notice in writing to the Secretary. In addition, the
receipt of a new or revised Notice of Election form by the Secretary
shall constitute a revocation of any previously filed Notice of Election
form to the extent
inconsistent therewith. No revocation shall be effective with respect
to Compensation earned prior to the date the revocation is received by
the Secretary or the effective date of the new or revised Notice of
Election.
4.TREATMENT OF DEFERRED AMOUNTS
The Company shall establish on its books the necessary accounts
("Account", or collectively, "Accounts") to accurately reflect the
Company's liability to each Participant. To each Account shall be
credited, as applicable, Deferred Amounts, Dividend Equivalents on
Common Shares, Allstate Share Units, Allstate Dividend Equivalents and
interest. Payments to the Participant or amounts transferred to another
Account under the Plan shall be debited to the appropriate Account.
a.Account #1 - Interest-Bearing Account. Compensation deferred into an
Interest-Bearing Account shall be credited to the Account on the same
date when it would otherwise be payable to the Participant. Deferred
Amounts carried in this Account shall earn interest from the date of
credit to the date of payment. At the end of each calendar month,
interest at a rate equal to the monthly average per annum cost of
commercial paper or the equivalent issued by Sears Roebuck Acceptance
Corp. ("SRAC") as reported in the monthly report to the SRAC Board of
Directors shall be credited to the amounts previously accrued in each
Account for the period from the date amounts were credited to such
Account to the end of such calendar month.
b.Account #2 - Common Share Unit Account. Compensation deferred into a
Common Share Unit Account shall be credited to the Account on the same
date when it would otherwise be payable to the Participant. Such
Deferred Amounts shall be converted into a number of Common Share Units
on the date credited to the Account by dividing the Deferred Amount by
the Fair Market Value on such date. If Common Share Units exist in a
Participant's Account on a dividend record date for the Company's common
shares, Dividend Equivalents shall be credited to the
Participant's Account on the related dividend payment date, and shall be
converted into the number of Common Share Units which could be purchased
with the amount of Dividend Equivalents so credited.
In the event of any change in the Company's common shares outstanding,
by reason of any stock split or dividend,
recapitalization, merger, consolidation, combination or exchange of
stock or similar corporate change, the Secretary shall make such
equitable adjustments, if any, deemed appropriate by reason of any such
change, in the number of Common Share Units credited to each
Participant's Account.
Subject to changes in the law, the Common Share Units will be treated as
derivative securities as defined in the rules promulgated under Section
16 of the Securities Exchange Act of 1934. A Participant may opt out of
such treatment by
irrevocably waiving in writing the right to have amounts transferred out
of this Account, except incident to termination of membership on the
Board of Directors, death or disability.
c.Account #3 - Equity Index Account. Compensation deferred into an
Equity Index Account shall be credited to the Account on the same date
when it would otherwise be payable to the Participant. On the last day
in the month the amounts in the Participant's Account shall be adjusted
by a percentage factor based on the total return (including dividends)
of the Equity Index from the date the amount was credited to the Account
for amounts credited during the month or from the last day of the
preceding month for amounts in the Account on such day. Similar
adjustments shall also be made on any date the Account is debited by
reason of any transfer of an amount to another Account or distribution
to the Participant. In the event that the Equity Index is not published
for any date referred to above, the Index for the closest day preceding
such date for which such Equity Index is published shall be used.
d.Account #4 - Fixed Income Index Account. Compensation deferred into
a Fixed Income Index Account shall be credited to the Account on the
same date when it would otherwise be payable to the Participant.
Amounts credited to the Account shall earn additional amounts which will
be credited to the Account on the last business day of each month based
upon the Iperformance of the Fixed Income Index.
e.Account #5 - Allstate Share Unit Account. Participants who have
Common Share Unit Accounts on the payment date for the Company's
distribution to its common shareholders of its remaining ownership of
Allstate common stock will, at their election, be credited with the same
number of Allstate Share Units per Common Share Unit as Allstate common
shares distributed per each Company common share in the distribution.
Such election shall be received by the Secretary of the Company on or
before the payment date for such distribution. In the absence of
receipt of such election as to any Participant, the Secretary shall
adjust the Common Share Unit Account of the Participant to reflect in
Common Share Units the value of the Allstate distribution. All Allstate
Share Units shall be credited to Participants' Allstate Share Unit
Account.
If Allstate Share Units exist in a Participant's Account on a dividend
record date for Allstate's common stock, Allstate Dividend Equivalents
shall be credited to the Participant's Allstate Share Unit Account on
the related dividend payment date, and shall be converted into the
number of Allstate Common Share Units which could be purchased with the
amount of Allstate Dividend Equivalents so credited.
In the event of any change in Allstate's common stock outstanding, by
reason of any stock split or dividend, recapitalization, merger,
consolidation, combination or exchange of stock or similar corporate
change, the Secretary shall make such equitable adjustments, if any,
deemed appropriate by reason of any such change, in the number of
Allstate Common Share Units credited to each Participant's Allstate
Share Unit Account.
Subject to changes in the law, as to Participants who are directors or
executive officers of Allstate, the Allstate Common Share Units will be
treated as derivative securities as defined in the rules promulgated
under Section 16 of the Securities Exchange Act of 1934. A Participant
may opt out of such treatment by irrevocably waiving in writing the
right to have amounts transferred out of this Account, except incident
to termination of membership on the Board of Directors, death or
disability.
For purposes of this Section 4(e):
"Allstate" shall mean The Allstate Corporation.
"Allstate Dividend Equivalent" shall mean an amount equal to the cash
dividend paid on one of Allstate's shares of common stock, credited to a
Participant's Allstate Share Unit Account for each Allstate Share Unit
credited to such Account.
"Allstate Fair Market Value" shall mean the closing price of Allstate's
common shares as reported by the Wall Street Journal or other comparable
source in a summary of composite
transactions for stocks listed on the New York Stock Exchange.
"Allstate Share Unit" shall mean a unit or fraction of a unit calculated
(except with respect to the initial allocation of such units to
Participants' accounts at the time of the Company's distribution of
Allstate stock) by dividing a dollar amount by the Allstate Fair Market
Value of one of Allstate's shares of common stock.
f.Transfers Between Accounts. Transfers between Account #1, Account #3
and Account #4 may be made at any time requested by the Participant upon
application to the Secretary.
Participants may transfer Deferred Amounts carried in Account #2 to
another Account, or from another Account into Account #2, only upon
application to and approval by the Secretary. Such transfers may be made
only during the ten business days commencing on the third and ending on
the twelfth business day following the release of quarterly and annual
summary statements of the Company's sales and earnings. No more than
two such transfers may be made in any calendar year.
Participants who are directors or executive officers of Allstate may
transfer amounts into another Account from Account #5, only upon
application to and approval by the Secretary. Such transfers may be made
only during the ten business days commencing on the third and ending on
the twelfth business day following the release of quarterly and annual
summary statements of Allstate's sales and earnings. No more than two
such transfers may be made in any calendar year. Participants who are
not directors or executive officers of Allstate may make transfers from
Account #5 to another Account at any time requested by the Participant
upon application to the Secretary. No Participant may make transfers to
Account #5 from any other Account under any circumstances.
5.DISTRIBUTION
a.Except in the case of the death of a Participant, distribution of
Accounts shall commence as of the date specified by the Participant in
said Participant's applicable Notice of Election form, which date shall
be no later than one year after termination from the Board. The
Participant may revise the terms of distribution of the Participant's
Accounts by submitting a revised Notice of Election, provided that (i)
the revised Notice of Election form shall be filed by the Participant
with the Secretary not later than twelve months prior to the
Participant's normal retirement date from the Board, and (ii) in any
event, distribution of the Participant's Accounts shall not commence
earlier than twelve months after the Participant's revised Notice of
Election form is filed with the Secretary.
b.Except in the case of the death of the Participant, payment of the
amount in each Account shall be either in the form of a lump-sum or in
annual installments over a period of years not to exceed ten (10) years
as selected by the Participant in the applicable Notice of Election
form. The amount of any installment payment shall be determined by
multiplying the amount to which the Participant would be entitled as a
lump sum on the installment date by a fraction, the numerator of which
is one and the denominator of which is the number of remaining unpaid
installments.
c.In the event of the Participant's death prior to the Distribution
Date, or after annual installments to the Participant have commenced but
before full distribution has been made, the then remaining balance in
each Account shall be paid in a lump-sum to the Beneficiary or
contingent Beneficiary designated in the Notice of Election form, or to
the estate of the deceased Participant if there is no surviving
Beneficiary or contingent Beneficiary. In either such event the lump
sum payment shall be valued as of the first day of the month following
the Participant's date of death. A Participant may change the
Beneficiary or contingent Beneficiary from time to time by filing with
the Secretary a written notice of such change; provided, however, that
no such notice of change of Beneficiary shall be effective unless it had
been received by the Secretary prior to the date of the Participant's
death.
d.Upon demonstration of Hardship by the Participant to the Compensation
Committee of the Board of Directors of the Company, distribution of a
Participant's Account, or the remaining balance of any unpaid
installments, as the case may be, may be made in a lump sum.
6.MISCELLANEOUS
a.The Board of Directors of the Company may amend or terminate the Plan
at any time; however, any amendment or termination of the Plan shall not
affect the rights of Participants or Beneficiaries to payment, in
accordance with Section 5 of the Plan, of amounts credited to
Participants' Accounts at the time of such amendment or termination.
The Board of Directors and the Secretary may in their discretion
prescribe such provisions and interpretations of the Plan as they shall
deem necessary or advisable.
b.The Plan does not create a trust in favor of a Participant, a
Participant's designated Beneficiary or Beneficiaries, or any other
person claiming on a Participant's behalf, and the obligation of the
Company is solely a contractual obligation to make payments due
hereunder. In this regard, the balance in any Account shall be
considered a liability of the Company and a Participant's right thereto
shall be the same as any unsecured general creditor of the Company.
Neither a Participant nor any other person shall acquire any right,
title, or interest in or to any amount outstanding to a Participant's
credit under the Plan other than the actual payment of such portions
thereof in accordance with the terms of the Plan.
c.No right or benefit under the Plan shall be subject to anticipation,
alienation, sale, assignment, pledge, encumbrance or change, and any
attempt to anticipate, alienate, sell, assign, pledge, encumber or
change the same shall be void. No right or benefit hereunder shall in
any manner be liable for or subject to the debts, contracts, liabilities
or torts of the person entitled to such benefit.
d.Construction of the Plan shall be governed by the laws of Illinois.
e.The terms of the Plan shall be binding upon the heirs, executors,
administrators, personal representatives, successors and assigns of all
parties in interest.
f.The headings have been inserted for convenience only and shall not
affect the meaning or interpretation of the Plan.
g.Any amount payable to or for the benefit of a minor, an incompetent
person or other person incapable of receipting therefor shall be deemed
paid when paid to such person's guardian or to the party providing or
reasonably appearing to provide for the care of such person, and such
payment shall fully discharge the Company and the Board of Directors
with respect thereto.
h.The Plan provisions contained in subsections 2.b., 2.g., 2.h., 2.j.,
2.k. 2.l, 4.b and the second paragraph of subsection 4.f (as to all
Participants) and subsection 4.e and the third paragraph of subsection
4.f (as to Participants who are directors or executive officers of
Allstate) shall not be amended more than once every six months, other
than to comport with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act of 1974, or the rules thereunder.
Exhibit 10(f)
NON-EMPLOYEE DIRECTORS RETIREMENT PLAN
Each director who is not an employee of the Company or its subsidiaries
("non-employee director") who is a director on November 8, 1995 will be
eligible upon retirement from the Board of Directors at the mandatory
retirement age (or upon earlier retirement with Board approval), to
receive, while living, a quarterly payment in advance of each quarter
equal to one-twelfth of the "annual retainer fee" of $30,000 in effect
on November 8, 1995. For purposes of this Plan, the annual retainer fee
shall exclude additional fees paid to a non-employee director for acting
as chairman of a committee. Payment(s) to eligible non-employee
directors under this Plan shall begin upon retirement from the Board.
Persons who become directors of the Company subsequent to November 8,
1995 will not be eligible for benefits under this Plan.
The Board of Directors and the Secretary may in their discretion
prescribe such provisions and interpretations as either shall deem
necessary or advisable for purposes of this Plan. At any time, the
Board of Directors may amend, modify or terminate this Plan, in whole or
in part, and terminate benefits to an otherwise eligible non-employee
director who ceases to serve as such because, in the opinion of the
Board, of misfeasance.
Nothing in the Plan shall be deemed to create any obligation on the part
of the Board of Directors to nominate any non-employee director for
reelection by the Company's shareholders. The Plan does not create a
trust in favor of a non-employee director or any other person and the
obligation of the Company is solely a contractual obligation to make
payments due hereunder. In this regard, benefits under the Plan shall
be considered a liability of the Company and a non-employee director's
right thereto shall be the same as any unsecured general creditor of the
Company. No non-employee director shall acquire any right, title or
interest in or to any amounts payable to a non-employee director under
the Plan other than the actual payment of such amounts in accordance
with the terms of the Plan.
No right or benefit under the Plan shall be subject to anticipation,
alienation, sale, assignment, pledge, encumbrance or change, and any
attempt to anticipate, alienate, sell, assign, pledge, encumber or
change the same shall be void. No right or benefit hereunder shall in
any manner be liable for or subject to the debts, contracts, liabilities
or torts of the person entitled to such benefit.
Construction of the Plan shall be governed by the laws of Illinois.
Exhibit 99
RESOLVED, that The Savings and Profit Sharing Fund of Sears
Employees, as amended and restated as of June 30, 1995, be amended
in the following particulars as of November 8, 1995:
1. Clause (ii) of subsection C-7(a) of Supplement C shall be
amended to read as follows:
"(ii)a fraction, the numerator of which is the amount of
principal and interest paid on that loan for that plan year and the
denominator of which is the amount of principal and interest paid
or payable on that loan for that plan year and for all future
years; provided, however, that with respect to the 1995 plan year
there shall be excluded from both the numerator and denominator of
such fraction that portion of the interest paid for the period
January 1, 1995, through June 30, 1995 ("first half 1995 interest")
that is equal to a fraction the numerator of which is the number of
released shares attributable to first half 1995 interest
(determined under this subsection C-7(a) without regard to this
proviso) that are allocable to participants in the Plan who became
participants in the Allstate Plan as of June 30, 1995, and the
denominator of which is the total number of released shares
attributable to first half 1995 interest (determined under this
subsection C-7(a) without regard to this proviso)."
2. Subsection C-8(b) of Supplement C shall be amended to read as
follows:
"(b)As of each December 31, any Company Shares released from the
Suspense Account that are attributable to payments made on ESOP
Loans for the plan year ending on that date (including payments
made after such December 31 that are designated as payments with
respect to the plan year ending on such December 31 pursuant to
subsection C-5) and not credited in accordance with paragraph (a)
shall be credited to the Supplement C Shares accounts of eligible
participants pursuant to subsection 6.5, except to the extent that
any such allocations would duplicate advancements credited in
accordance with subparagraph 6.5(a)(v)."
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONDENSED
CONSOLIDATED BALANCE SHEETS AND STATEMENTS OF INCOME AND CASH FLOWS AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-30-1995
<PERIOD-END> SEP-30-1995
<CASH> 469
<SECURITIES> 0
<RECEIVABLES> 19,146
<ALLOWANCES> 818
<INVENTORY> 4,840
<CURRENT-ASSETS> 25,336
<PP&E> 9,012
<DEPRECIATION> 4,364
<TOTAL-ASSETS> 31,873
<CURRENT-LIABILITIES> 14,392
<BONDS> 9,434
<COMMON> 322
0
325
<OTHER-SE> 3,654
<TOTAL-LIABILITY-AND-EQUITY> 31,873
<SALES> 21,213
<TOTAL-REVENUES> 24,071
<CGS> 15,725
<TOTAL-COSTS> 15,725
<OTHER-EXPENSES> 5,813
<LOSS-PROVISION> 580
<INTEREST-EXPENSE> 1,025
<INCOME-PRETAX> 948
<INCOME-TAX> 378
<INCOME-CONTINUING> 570
<DISCONTINUED> 776
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,346
<EPS-PRIMARY> 3.38
<EPS-DILUTED> 0.00<F1>
<FN>
<F1>Not applicable
</FN>
</TABLE>
