As filed with the Securities and Exchange Commission
on October 17, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
______________________
SEARS, ROEBUCK AND CO.
(Exact name of registrant as specified in its charter)
New York 36-1750680
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3333 Beverly Road
Hoffman Estates, Illinois 60179
(Address of principal executive offices)
Associate Stock Ownership Plan
(Full title of the plan)
Michael D. Levin
Senior Vice President, General Counsel and Secretary
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
(847) 286-2500
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
___________________________________________________________________________
Proposed Proposed
Title of Amount to be maximum maximum aggregate Amount of
securities registered offering offering price registration
to be price per fee
registered (1) share
__________________________________________________________________________
<S> <C> <C> <C> <C>
Common Shares, 10,000,000 shares $50.50(2) $505,000,000.00(2) $153,030.30
$.75 par value
___________________________________________________________________________
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate
amount of interests to be sold pursuant to the employee benefit
plan described herein.
(2) Estimated solely for the purpose of calculating the registration
fee and, pursuant to Rules 457(h)(1) and 457(c) under the
Securities Act of 1933, based upon the average of the high and low
sale prices of the Common Stock of the Registrant on the New York
Stock Exchange on October 16, 1997.
</TABLE>
PART II INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents heretofore filed with the
Securities and Exchange Commission (the "Commission") by Sears, Roebuck and
Co. (the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
year ended December 28, 1996 (the "1996 Annual Report").
(b) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since December 28, 1996.
(c) The description of the Company's common shares,
par value $.75 per share (the "Common Stock"), which is contained in Item 5
of the 1996 Annual Report, including any subsequent amendment or any report
filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act and all documents filed by
the Associate Stock Ownership Plan pursuant to Section 15(d) of the
Exchange Act after the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents (such
documents, and the documents enumerated above, being hereinafter referred
to as "Incorporated Documents").
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Company is a New York corporation. Sections 721
through 724 of the New York Business Corporation Law ("BCL") provide that
in certain circumstances a corporation may indemnify directors and officers
against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees, actually and necessarily incurred as a
result of any action or proceeding by or in the right of any other
corporation which such directors or officers served in any capacity at the
request of the Company, if such director or officer (i) acted in good faith
for a purpose which he or she reasonably believed not to be opposed to the
best interests of the Company and (ii) in criminal actions or proceedings,
had no reasonable cause to believe that his or her conduct was unlawful;
provided, however, that no indemnification may be made to or on behalf of
any director or officer if a judgment or other final adjudication adverse
to the director or officer establishes that his or her acts were committed
in bad faith or were the result of active and deliberate dishonesty and
were material to the cause of action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage to which he
or she was not legally entitled. A corporation is required to indemnify
against reasonable expenses (including attorneys' fees) any director or
officer who successfully defends any such actions. The foregoing
statements are subject to the detailed provisions of the BCL.
Article V of the by-laws of the Company provides that the
Company shall indemnify to the full extent permitted by law, any person
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 person or his testator or
intestate, while a director or officer of the Company and at the request of
the Company, is or was serving another corporation in any capacity, against
judgments, fines, amounts paid in settlement and all expenses, including
attorneys' fees, actually incurred as a result of such action. Article V
states that the indemnification benefits provided thereby are contract
rights, enforceable as if set forth in a written contract.
The Company has in effect insurance policies in the amount
of $100 million covering all of the Company's directors and officers in
certain instances where by law they may not be indemnified by the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits accompanying this Registration Statement are
listed on the accompanying Exhibit Index.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities
Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and
any deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act and each filing of the Associate Stock
Ownership Plan's annual report pursuant to Section 15(d) of the Exchange
Act that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Village of
Hoffman Estates, State of Illinois, on this 17th day of October, 1997.
SEARS, ROEBUCK AND CO.
By:/s/ALAN J. LACY*
Name: Alan J. Lacy
Title:Executive Vice
President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following persons
in the capacities indicated on this 17th day of October, 1997.
/s/ARTHUR C. MARTINEZ* Director, Chairman of the Board of Directors,
Arthur C. Martinez President and Chief Executive Officer
(Principal Executive Officer)
/s/ALAN J. LACY* Executive Vice President and Chief Financial
Alan J. Lacy Officer (Principal Financial Officer)
/s/JAMES A. BLANDA* Vice President and Controller
James A. Blanda (Principal Accounting Officer)
/s/HALL ADAMS, JR.* Director
Hall Adams, Jr.
/s/WARREN L. BATTS* Director
Warren L. Batts
/s/ALSTON D. CORRELL, JR.* Director
Alston D. Correll, Jr.
/s/MICHAEL A. MILES* Director
Michael A. Miles
/s/RICHARD C. NOTEBAERT* Director
Richard C. Notebaert
/s/PATRICK G. RYAN* Director
Patrick G. Ryan
/s/HUGH B. PRICE* Director
Hugh B. Price
/s/CLARENCE B. ROGERS, Jr.* Director
Clarence B. Rogers, Jr.
/s/DONALD H. RUMSFELD* Director
Donald H. Rumsfeld
/s/DOROTHY A. TERRELL* Director
Dorothy A. Terrell
By: /s/ALAN J. LACY
Alan J. Lacy
Attorney-In-Fact
The Plan. Pursuant to the requirements
of the Securities Act of 1933, the Administration Committee administering the
Associate Stock Ownership Plan has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
Village of Hoffman Estates, State of Illinois on this 17th day of
October, 1997.
ASSOCIATE STOCK OWNERSHIP PLAN
By:/s/MICHAEL D. LEVIN
Michael D. Levin
Member of the Administration
Committee
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
Exhibit
Number Description of Exhibit
4(a) Restated Certificate of Incorporation of the Company, as amended
to May 13, 1996 (incorporated by reference to Exhibit 3(a)to the
Company's Registration Statement, Registration No. 333-8141).
*4(b) By-Laws of the Company, as amended to August 13, 1997.
*4(c) Associate Stock Ownership Plan, as amended and restated.
*5 Opinion of Nancy K. Bellis.
*15 Acknowledgment of Awareness from Deloitte & Touche LLP concerning
Unaudited Interim Financial Information.
*23(a) Consent of Nancy K. Bellis (included in the opinion filed as
Exhibit 5).
*23(b) Consent of Deloitte & Touche LLP.
*24 Powers of Attorney.
________________________________
* Filed herewith.
Exhibit 4(b)
By-Laws
of
Sears, Roebuck and Co.
as amended to
August 13, 1997
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 (i) of shareholders
to request inclusion of proposals in the Company's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii)
of the holders of any series of Preferred Stock to elect
directors under specified circumstances.
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.
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 may, and at the request of a shareholder entitled to
vote thereat, shall, make such appointments or fill such
vacancies. 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
affirmative vote of a majority of the entire Board of Directors,
but in no event shall the number of directors be less than 7 or
more than 20.
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 before or
after the meeting, and the attendance of a director at any
meeting, except for the sole purpose of protesting the lack of
notice thereof, shall constitute a waiver of notice of such
meeting. Any and all business may be transacted at any meeting
which need not be restricted to the purpose thereof specified in
the notice or waiver of notice of such meeting, if one is
specified.
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 the entire
Board of Directors, an Audit Committee, a Compensation Committee, an
Executive Committee, and a Nominating 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 the
entire Board of Directors, 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.
The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
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 before
or after the meeting. 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 Nominating Committee annually, no
later than December. The Nominating Committee shall report on
such recommendations to the Board of Directors at its first
regular meeting each year.
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 or
the independent public accountants and/or internal auditors
request such a meeting. 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 or pursuant to plan documents or resolutions of the
Board of Directors) affecting officers' direct and indirect
remuneration.
The Compensation Committee shall review 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 as executive
officers of the Company.
The Nominating Committee shall annually assess the performance
of the Board, evaluate the performance of the Chairman and Chief
Executive Officer of the Company, and review the management
organization of the Company and succession plans for the
Chairman and Chief Executive Officer of the Company, including
consultation with the Chairman of the Board of Directors
regarding persons considered qualified to fill any vacancy that
may occur in the position of Chairman and Chief Executive
Officer. In the event of any such vacancy, the Nominating
Committee shall recommend to the Board of Directors a nominee to
fill such vacancy.
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 may 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 Chief Financial Officer (regardless
of title) 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 annual meeting of the
Board of Directors following the next annual meeting of
shareholders 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.Chief Financial Officer. The Chief Financial
Officer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Company,
including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings, and
shares. The books of account shall at all reasonable times be
open to inspection by any director.
The Chief Financial Officer shall deposit all money and other
valuables in the name and to the credit of the Company with such
depositaries as may be designated by the Board of Directors. He
or she shall disburse the funds of the Company as may be ordered
by the Board of Directors, shall render to the Board of
Directors, the Chairman of the Board of Directors, or the
President, whenever they request it, an account of all of his or
her transactions as Chief Financial Officer and of the financial
condition of the Company, and shall have such other powers and
perform such other duties as may be prescribed by the Board of
Directors, the Chairman of the Board of Directors, the President
or these By-Laws.
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. Except as prohibited by
applicable law, 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 of the Board of
Directors 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 4 (c)
SEARS, ROEBUCK AND CO.
1997 Employee Stock Purchase Plan
1. Purpose. The purpose of the Sears, Roebuck and Co. 1997
Employee Stock Purchase Plan (the "Plan") is to provide employees of Sears,
Roebuck and Co., a New York corporation (the "Company"), and its Subsidiary
Companies (as defined below) added incentive to remain employed by such
companies and to encourage increased efforts to promote the best interests
of such companies by permitting eligible employees to purchase common
shares, par value $0.75 per share, of the Company ("Common Shares") at
below-market prices. The Plan is intended to qualify as an "employee stock
purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code") . For purposes of the Plan, the term "Subsidiary
Companies" shall mean all corporations which are subsidiary corporations
(within the meaning of Section 424(f) of the Code) and of which the Company
is the common parent. The Company and its Subsidiary Companies that, from
time to time, adopt the Plan are sometimes hereinafter called collectively
the "Participating Companies."
2. Eligibility. Participation in the Plan shall be open to each
employee of the Participating Companies who has been continuously employed
by the Participating Companies for at least sixty days (an "Eligible
Employee"). No right to purchase Common Shares hereunder shall accrue under
the Plan in favor of any person who is not an Eligible Employee as of the
first day of a Purchase Period (as defined in Section 3). Notwithstanding
anything contained in the Plan to the contrary, no Eligible Employee shall
acquire a right to purchase Common Shares hereunder if (i) immediately
after receiving such right, such employee would own 5% or more of the total
combined voting power or value of all classes of stock of the Company or
any Subsidiary Company (including any stock attributable to such employee
under Section 424(d) of the Code), or (ii) for any calendar year such right
would permit such employee to purchase Common Shares under any employee
stock purchase plan of the Company and its Subsidiary Companies which, when
aggregated, would have a fair market value (as determined on the first day
of the Purchase Period (as hereinafter defined)) in excess of the greater
of (i) $16,000 or (ii) 10% of the compensation limit set forth in Section
401(a) (17) of the Code, all determined in the manner provided by section
423(b) (8) of the Code; provided, however, that in no event shall the
aggregate fair market value of all Common Shares so purchased for any
calendar year exceed $25,000. In addition, the number of Common Shares
which may be purchased by any Eligible Employee during any Purchase Period
shall not exceed the whole number of Common Shares determined by dividing
10% of the Eligible Employee's compensation for the Purchase Period,
determined on the first day of the Purchase Period, bv 85% of the fair
market value (determined as described in Section 5) of a Common Share on
the first day of the Purchase Period.
3. Effective Date of Plan; Purchase Periods. The Plan shall
become effective on July 1, 1997 or on such later date as may be specified
by the Board of Directors (the "Board") of the Company or the Committee (as
defined in Section 11). The Plan shall cease to be effective unless, within
12 months before or after the date of its adoption by the Board, it has
been adopted by the shareholders of the Company at a duly-called meeting of
such shareholders.
A "Purchase Period" shall consist of the three month
period, beginning on each July 1, October 1, January 1, and April 1, each
commencing on or after the effective date and prior to termination of the
Plan.
4. Basis of Participation, (a) Payroll Deduction. Each
Eligible Employee shall be entitled to enroll in the Plan as of the first
day of any Purchase Period which begins on or after such employee has
become an Eligible Employee.
To enroll in the Plan, an Eligible Employee shall execute and
deliver a payroll deduction authorization (the "Authorization") to the
Company or its designated agent at the time and in the manner specified by
the Company. The executed Authorization shall become effective on the first
day of the Purchase Period following the day of delivery thereof to the
Company or its designated agent. Each Authorization shall direct that
payroll deductions be made by the employee's employer for each payroll
period during which the employee is a participant in the Plan. The amount
of each payroll deduction specified in an Authorization for each such
payroll period shall be a whole percentage amount, unless otherwise
determined by the Committee to be a whole dollar amount, in either case not
to exceed 10%, or such lesser percentage as may be determined by the
Committee, of the participant's compensation for the Purchase Period,
determined on the first day of the Purchase Period (before withholding or
other deductions), paid to him or her by any of the Participating
Companies.
Payroll deductions (and any other amount paid under the Plan)
shall be made for each participant in accordance with such participant's
Authorization until such participant's participation in the Plan
terminates, such participant's Authorization is revised or the Plan
terminates, all as hereinafter provided.
A participant may change the amount of his or her payroll
deduction effective as of the first day of any Purchase Period by filing a
new Authorization with the Company or its designated agent at the time and
in the manner specified by the Committee. A participant may not change the
amount of his or her payroll deduction effective as of any date other than
the first day of a Purchase Period, except that a participant may elect to
terminate his or her participation in the Plan as provided in Section 7.
Payroll deductions for each participant shall be credited to
a purchase account established on behalf of the participant on the books of
the participant's employer or such employer's designated agent (a "Purchase
Account") . At the end of each Purchase Period, the amount in each
participant's Purchase Account will be applied to the purchase from the
Company of the number of Common Shares determined by dividing such amount
by the Purchase Price (as defined in Section 5) for such Purchase Period.
No interest shall accrue at any time for any amount credited to a Purchase
Account of a participant.
(b) Other Methods of Participation. The Committee may, in its
discretion, establish additional procedures whereby Eligible Employees may
participate in the Plan by means other than payroll deduction, including,
but not limited to, delivery of funds by participants in a lump sum or
automatic charges to participants' bank accounts. Such other methods of
participating shall be subject to such rules and conditions as the
Committee may establish. The Committee may at any time amend, suspend or
terminate any participation procedures established pursuant to this
paragraph without prior notice to any participant or Eligible Employee.
5. Purchase Price. The purchase price (the "Purchase Price")
per Common Share hereunder for any Purchase Period shall be the lesser of
85% of the fair market value of a Common Share on the first day of such
Purchase Period and 85% of the fair market value of a Common Share on the
last day of such Purchase Period. If such sum results in a fraction of one
cent, the Purchase Price shall be increased to the next higher full cent.
For purposes of the Plan, the fair market value of a Common Share on a
given day shall be the mean between the high and low sale prices per share
for the Common Shares on such date, as reported in a summary of composite
transactions for stock listed on the New York Stock Exchange or, if the New
York Stock Exchange is not open for trading on such date, the fair market
value of a Common Share shall be the average of the means between the high
and low sale prices per share for the Common Shares, as so reported, on the
nearest date before and the nearest date after such date on which the New
York Stock Exchange is open for trading. In no event, however, shall the
Purchase Price be less than the par value of the Common Shares.
6. Purchase Accounts and Certificates. The Common Shares
purchased by each participant shall be credited to such participant's
Purchase Account as of the close of business on the last day of each
Purchase Period. A participant will be issued a certificate for his or her
shares when his or her participation in the Plan is terminated, the Plan is
terminated or upon request, but in the last case only in denominations of
at least 25 shares.
After the close of each Purchase Period, a report will be sent to
each participant stating the entries made to such participant's Purchase
Account, the number of Common Shares purchased and the applicable Purchase
Price. In the event that the maximum number of Common Shares are purchased
by the participant for the Purchase Period and cash remains credited to the
participant's Purchase Account, such cash shall be delivered promptly to
such participant. For purposes of the preceding sentence, the maximum
number of Common Shares that may be purchased by a participant for a
Purchase Period shall be determined under the last sentence of Section 2,
as limited bv the third sentence of Section 2.
7. Termination of Participation. A participant may elect at
any time to terminate his or her participation in the Plan, provided such
election is received by the Company or its designated agent in writing
prior to the date specified by the Committee for termination of
participation during the Purchase Period for which such termination is to
be effective. Upon any such termination, the cash credited to such
participant's Purchase Account on the date of such termination, one or more
certificates for the number of full Common Shares held for his or her
benefit, and the cash equivalent for any fractional share so held shall be
delivered promptly to such participant. Such cash equivalent shall be
determined by multiplying the fractional share by the fair market value of
a Common Share on the last day of the Purchase Period immediately preceding
such termination determined as provided in Section 5.
If the participant dies, terminates employment with the
Participating Companies for any reason, or otherwise ceases to be an
Eligible Employee, such participant's participation in the Plan shall
immediately terminate. Upon such terminating event, the cash credited to
such participant's Purchase Account on the date of such termination, one or
more certificates for the number of full Common Shares held for such
participant's benefit, and the cash equivalent of any fractional share so
held, determined as provided above in this Section 7, shall be delivered
promptly to such participant or his or her legal representative, as the
case may be.
8. Termination or Amendment of the Plan. The Plan shall
automatically terminate on June 30, 2002, unless terminated earlier by the
Company or as otherwise provided herein. The Company, by action of the
Board or the Committee, may terminate the Plan at any time prior to June
30, 2002, in which case notice of such termination shall be given to all
participants, but any failure to give such notice shall not impair the
effectiveness of the termination.
Without any action being required, the Plan shall terminate in any
event when the maximum number of Common Shares to be sold under the Plan
(as provided in Section 12) has been purchased. Such termination shall not
impair any rights which under the Plan shall have vested on or prior to the
date of such termination. If at any time the number of Common Shares
remaining available for purchase under the Plan are not sufficient to
satisfy all then-outstanding purchase rights, the Board or Committee may
determine an equitable basis of apportioning available Common Shares among
all participants.
The Board or the Committee may amend the Plan from time to time in
any respect for any reason; provided, however, no such amendment shall (a)
materially adversely affect any purchase rights outstanding under the Plan
during the Purchase Period in which such amendment is to be effected, (b)
increase the maximum number of Common Shares which may be purchased under
the Plan, (c) decrease the Purchase Price of the Common Shares for any
Purchase Period below the lesser of 85% of the fair market value thereof on
the first day of such Purchase Period and 85% of such fair market value on
the last day of such Purchase Period or (d) adversely affect the
qualification of the Plan under Section 423 of the Code.
Upon termination of the Plan, one or more certificates for
the number of full Common Shares held for each participant's benefit, the
cash equivalent of any fractional share so held determined as provided in
Section 7, and, except as otherwise provided in Section 14, the cash, if
any, credited to the such participant's Purchase Account, shall be
distributed promptly to such participant.
9. Non-Transferability. Rights acquired under the Plan are
not transferable and may be exercised only by a participant.
10. Shareholder's Rights. No Eligible Employee or participant
shall by reason of the Plan have any rights of a shareholder of the Company
until he or she shall acquire Common Shares as herein provided.
11. Administration of the Plan. The Plan shall be administered
by the Administrative Committee for Sears Benefit Plans (the "Committee").
In addition to the power to amend or terminate the Plan pursuant to Section
8, the Committee shall have full power and authority to: (i) interpret and
administer the Plan and any instrument or agreement entered into under the
Plan; (ii) establish such rules and regulations and appoint such agents as
it shall deem appropriate for the proper administration of the Plan; and
(iii) make any other determination and take any other action that the
Committee deems necessary or desirable for administration of the Plan.
Decisions of the Committee shall be final, conclusive and binding upon all
persons, including the Company, any participant and any other employee of
the Company. A majority of the members of the Committee may determine its
actions and fix the time and place of its meetings.
The Plan shall be administered so as to ensure that all
participants have the same rights and privileges as are provided by section
423(b) (5) of the Code.
12. Maximum Number of Shares. The maximum number of Common
Shares which may be purchased under the Plan is 10,000,000, subject to
adjustment as hereinafter set forth. Common Shares sold hereunder shall be
purchased for participants in the open market (on an exchange or in
negotiated transactions) or, if the Company's Chief Financial Officer, in
his or her discretion, deems it to be necessary or advisable, Common Shares
sold hereunder may be previously acquired treasury shares, authorized and
unissued shares, or any combination of shares purchased in the open market,
previously acquired treasury shares or authorized and unissued shares. If
the Company shall, at any time after the effective date of the Plan, change
its issued Common Shares into an increased number of shares, with or
without par value, through a stock dividend or a stock split, or into a
decreased number of shares, with or without par value, through a
combination of shares, then, effective with the record date for such
change, the maximum number of Common Shares which thereafter may be
purchased under the Plan and the maximum number of shares which thereafter
may be purchased during any Purchase Period shall be the maximum number of
shares which, immediately prior to such record date, remained available for
purchase under the Plan and under any Purchase Period proportionately
increased, in case of such stock dividend or stock split, or
proportionately decreased in case of such combination of shares.
13. Miscellaneous. Except as otherwise expressly provided
herein, any Authorization, election or notice under the Plan from an
Eligible Employee or participant shall be delivered to the Company or its
designated agent and, subject to any limitations specified in the Plan,
shall be effective when so delivered. The Plan, and the Company's
obligation to sell and deliver Common Shares hereunder, shall be subject to
all applicable federal and state laws, rules and regulations, and to such
approval by any regulatory or governmental agency as may, in the opinion of
counsel for the Company, be required.
14. Change in Control. In order to maintain the participants'
rights in the event of any Change in Control of the Company, as hereinafter
defined, upon such Change in Control the then current Purchase Period shall
thereupon end, and the cash credited to all participants' Purchase Accounts
shall be applied to purchase shares pursuant to Sections 5 and 6, and the
Plan shall immediately thereafter terminate. For purposes of this Section
14, "Change in Control" shall mean:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 20% or more of either (i) the then outstanding common shares of the
Company (the "Outstanding Company Common Shares") or (ii) the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company (excluding an acquisition by virtue
of the exercise of a conversion privilege); (ii) any acquisition by the
Company or any of its subsidiaries (as defined below); (iii) any
acquisition by any employee benefit plan (or any related trust) sponsored
or maintained by the Company or any of its subsidiaries; or (iv) any
acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or consolidation,
the conditions described in clauses (i), (ii) and (iii) of (c) below are
satisfied; or
(b) Individuals who, as of the date hereof, constitute the
Board (as of the date hereof, the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or
(c) Approval by the shareholders of the Company of a "Business
Combination", which shall mean a reorganization, merger or consolidation,
in each case, unless, following such reorganization, merger or
consolidation, (i) more than 60% of, respectively, the then outstanding
common shares of the corporation resulting from such reorganization, merger
or consolidation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Shares
and Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such reorganization,
merger or consolidation, of the Outstanding Company Common Shares and
Outstanding Company Voting Securities, as the case may be, (ii) no Person
(excluding the Company, any of its subsidiaries, any employee benefit plan
(or related trust) sponsored or maintained by the Company, any of its
subsidiaries or such corporation resulting from such reorganization, merger
or consolidation and any Person beneficially owning, immediately prior to
such reorganization, merger or consolidation, directly or indirectly, 20%
or more of the Outstanding Company Common Shares or Outstanding Company
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding common
shares of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election
of directors and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization,
merger or consolidation; or
(d) Approval by the shareholders of the Company of (i) a
complete liquidation or dissolution of the Company or (ii) the sale or
other disposition of all or substantially all of the assets of the Company,
other than to a corporation, with respect to which following such sale or
other disposition, (A) more than 60% of, respectively, the then outstanding
common shares of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding Company
Common Shares and Outstanding Company Voting Securities immediately prior
to such sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other disposition, of
the Outstanding Company Common Shares and Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding the Company, any
of its subsidiaries, and any employee benefit plan (or related trust)
sponsored or maintained by the Company, any of its subsidiaries or such
corporation and any Person beneficially owning, immediately prior to such
sale or other disposition, directly or indirectly, 20% or more of the
Outstanding Company Common Shares or Outstanding Company Voting Securities,
as the case may be) beneficially owns, directly or indirectly, 20% or more
of, respectively, the then outstanding common shares of such corporation
and the combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of directors
and (C) at least a majority of the members of the board of directors of
such corporation were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing for
such sale or other disposition of assets of the Company.
For the purposes of the foregoing definition of "Change of
Control," a "subsidiary" of the Company shall mean any corporation in which
the Company, directly or indirectly, holds a majority of the voting power
of such corporation's outstanding shares of capital stock.
Exhibit 5
October 17, 1997
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Re: Sears, Roebuck and Co.
10,000,000 Common Shares,
par value $.75 per share
Ladies and Gentlemen:
I am an Assistant General Counsel of Sears, Roebuck and Co., a
New York corporation (the "Company"). I refer to the Registration
Statement on Form S-8 (the "Registration Statement") being filed by the
Company with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "Securities Act"), relating to the
registration of 10,000,000 common shares, par value $.75 per share (the
"Shares"), of the Company, which may be offered and sold under the
Company's Associate Stock Ownership Plan (the "Plan").
I am familiar with the Restated Certificate of Incorporation of
the Company, the By-laws of the Company and the resolutions adopted to date
by the Board of Directors of the Company relating to the Plan and the
Registration Statement.
In this connection, I have examined originals, or copies of
originals certified or otherwise identified to my satisfaction, of such
records of the Company and other corporate documents, have examined such
questions of law and have satisfied myself as to such matters of fact as I
have considered relevant and necessary as a basis for the opinions set
forth herein. I have assumed the authenticity of all documents submitted
to me as originals, the genuineness of all signatures, the legal capacity
of all natural persons and the conformity with the original documents of
any copies thereof submitted to me for my examination.
Based on the foregoing, I am of the opinion that:
1. The Company is duly incorporated and validly
existing under the laws of the State of New York.
2. If, pursuant to due authorization of the
Company's Board of Directors, the Company shall issue
authorized and unissued shares of its Common Stock
pursuant to the Plan, such Shares will be legally
issued, fully paid and non-assessable when (i) the
Registration Statement shall have become effective
under the Securities Act and (ii) such Shares shall
have been purchased for the account of a participant
in the Plan in accordance with the terms of the Plan.
I do not find it necessary for the purposes of this opinion to
cover, and accordingly I express no opinion as to, the application of the
securities or blue sky laws of the various states to the issuance and sale
of the Shares.
This opinion is limited to the Business Corporation Law of the
State of New York and the federal laws of the United States of America.
I hereby consent to the filing of this opinion as an Exhibit to
the Registration Statement and to all references to my name included in or
made a part of the Registration Statement.
Very truly yours,
/S/NANCY K. BELLIS
Nancy K. Bellis
EXHIBIT 15
October 8, 1997
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim financial information of Sears, Roebuck and Co. for the periods
ended March 29, 1997 and March 30, 1996 and June 28, 1997 and June 29,
1996, as indicated in our reports dated April 17,1997 and July 24, 1997,
respectively; because we did not perform an audit, we expressed no opinion
on that information.
We are aware that our reports referred to above, which were included in
your Quarterly Reports on Form 10-Q for the quarters ended March 29, 1997
and June 28, 1997, are being used in this Registration Statement.
We are also aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant within the
meaning of Sections 7 and 11 of that Act.
/s/Deloitte & Touche LLP
Deloitte & Touche LLP
Chicago, Illinois
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Sears, Roebuck and Co. on Form S-8 related to the Sears Associate Stock
Ownership Plan of our report dated February 10, 1997 incorporated by
reference in the Annual Report on Form 10-K of Sears, Roebuck and Co. for
the year ended December 28, 1996.
/s/Deloitte & Touche LLP
Deloitte & Touche LLP
Chicago, Illinois
October 8, 1997
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned,
being a director or officer, or both, of SEARS, ROEBUCK AND CO., a New York
corporation (the "Company"), does hereby constitute and appoint ARTHUR C.
MARTINEZ, ALAN J. LACY, MICHAEL D. LEVIN, JAMES A. BLANDA and ALICE M.
PETERSON, with full power to each of them to act alone, as the true and
lawful attorneys and agents of the undersigned, with full power of
substitution and resubstitution to each of said attorneys, to execute, file
or deliver any and all instruments and to do any and all acts and things
which said attorneys and agents, or any of them, deem advisable to enable
the Company to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any requirements or regulations of the Securities
and Exchange Commission in respect thereto, in connection with the
registration under the Securities Act of 10,000,000 common shares, par
value $.75 per share, of the Company, for issuance under the Associate
Stock Ownership Plan (the "Plan"); including specifically, but without
limitation of the general authority hereby granted, the power and authority
to sign his or her name as a director and officer of the Company to the
Registration Statement, any amendment, post-effective amendment or
supplement thereto, any prospectus or other document which is part of the
Registration Statement, and any amendments, supplements or revisions to
such prospectus or document; and the undersigned does hereby fully ratify
and confirm all that said attorneys and agents, or any of them, or the
substitute of any of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents,
as of the 30th day of September, 1997.
NAME TITLE
/s/ARTHUR C. MARTINEZ Director, Chairman of the Board of
Arthur C. Martainez Directors, President and Chief Executive
Officer (Principal Executive Officer)
/s/ALAN J. LACY Executive Vice President and Chief
Alan J. Lacy Financial Officer (Principal Financial
Officer)
/s/JAMES A. BLANDA Vice President and Controller
James A. Blanda (Principal Accounting Officer)
/S/HALL ADAMS, JR. Director
Hall Adams, Jr.
/s/WARREN L. BATTS Director
Warren L. Batts
/s/ALSTON D. CORRELL, JR. Director
Alston D. Correll, Jr.
/s/MICHAEL A. MILES Director
Michael A. Miles
/s/RICHARD C. NOTEBAERT Director
Richard C. Notebaert
/s/HUGH B. PRICE Director
Hugh B. Price
/s/CLARENCE B. ROGERS, JR. Director
Clarence B. Rogers, Jr.
/s/DONALD H. RUMSFELD Director
Donald H. Rumsfeld
/s/PATRICK G. RYAN Director
Patrick G. Ryan
/s/DOROTHY A. TERRELL Director
Dorothy A. Terrell
