THE HOME DEPOT, INC.
BY-LAWS (AMENDED AND RESTATED)
ARTICLE I.
MEETINGS OF STOCKHOLDERS
SECTION l. The annual meeting of the stockholders for the
election of Directors and for the transaction of such other business as may
properly come before the meeting shall be held on such date and at such
time and place as the Board of Directors may by resolution provide. Notice
of any other business to be brought before an annual meeting of
stockholders by a stockholder must be provided in writing to the Secretary
of the Corporation not later than the close of business on the 90th day nor
earlier than the close of business on the 120th day prior to the date of
the meeting. Such stockholder's notice shall set forth (a) 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 stockholder and the beneficial owner, if
any, on whose behalf the proposal is made and (b) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
proposal is made (i) the name and address of such stockholder, as they
appear on the Corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the Corporation that are owned
beneficially and held of record by such stockholder and such beneficial
owner. In addition, if the stockholder intends to solicit proxies from the
stockholders of the Corporation, such stockholder's notice shall notify the
Corporation of this intent. If a stockholder fails to notify the
Corporation of his or her intent to solicit proxies and does in fact
solicit proxies, the Chairman of the Board shall have the authority, in his
or her discretion, to strike the proposal or nomination by the stockholder.
SECTION 2. Special meetings of the stockholders may be called
at any time by the Chairman of the Board, the President or the Board of
Directors.
SECTION 3. Written notice of the time and place of every annual
or special meeting of the stockholders shall be given at least ten but not
more than sixty days previous to such meetings by personal delivery to the
stockholder of a copy of such notice or by mailing a copy of such notice
addressed to the stockholder at his post office address as the same shall
appear on the record of stockholders of the Corporation or, if he shall
have filed with the Secretary of the Corporation a written request that
notices to him be mailed to him at some other address, then addressed to
him at such other address; provided, however, that notice of any meeting to
take action on a proposed merger or consolidation of the Corporation or on
a proposed sale of all or substantially all of the assets of the
Corporation shall be given at least twenty but not more than sixty days
prior to such meeting. Notice of a special meeting of the stockholders
shall also state the purpose or purposes for which the meeting is called.
Each notice of a special meeting of stockholders shall indicate that it has
been issued by or at the direction of the person or persons calling the
meeting. Notice shall be deemed given when deposited, postage prepaid, in
a United States post office or official depository. A written waiver of
notice signed by the stockholder entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice.
Attendance of a stockholder at a meeting shall constitute a waiver of
notice of such meeting, except when the stockholder attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the stockholders need be specified in any
written waiver of notice.
SECTION 4. Every annual meeting of the stockholders shall be
held at such place within or without the State of Delaware as may be
determined by the Board of Directors and stated in the notice of any such
meeting, and every special meeting shall be held at such place within or
without the State of Delaware as may be stated in the notice of such
special meeting.
SECTION 5. No business shall be transacted at any special
meeting of the stockholders except that business which related to the
purpose or purposes set forth in the notice of the meeting.
SECTION 6. At each meeting of the stockholders there shall be
present, either in person or by proxy, the holders of a majority of the
shares of the Corporation entitled to vote thereat in order to constitute a
quorum. Any meeting of the stockholders at which a quorum is not present
may be adjourned from time to time to some other time without any new
notice other than an announcement at the meeting by the votes cast in
person or by proxy of the holders of a majority of those shares which are
cast on a motion to adjourn, provided, however, that if any adjournment is
for more than thirty days, notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
SECTION 7. At all meetings of the stockholders, all questions
except as otherwise required by the laws of the State of Delaware shall be
determined by a majority of the votes cast at the meeting of the holders of
shares entitled to vote thereon. Upon all questions, every stockholder of
record shall be entitled at every meeting of stockholders to one vote for
every share of common stock standing in his name on the books of the
Corporation and qualified to vote. Holders of shares of $50 Series A
Preferred Stock and $50 Series B Preferred Stock all have not right to vote
such shares at any meeting of stockholders and shall have no voice in the
management of the Corporation.
SECTION 8. At all meetings of the stockholders, absent
stockholders entitled to vote thereat may vote by proxy or by the attorney-
in-fact thereof. No proxy shall be valid after the expiration of three
years from the date thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the person executing it except
as otherwise provided by the laws of the State of Delaware.
SECTION 9. Any action required to be taken or which may be
taken at a meeting of the stockholders may be taken without a meeting,
without prior notice and without a vote if consent in writing, setting
forth the action so taken, shall be signed by the holders of stock having
not less than the minimum number of votes necessary to take such action at
a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate actions without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE II.
DIRECTORS
SECTION 1. The business and affairs of the Corporation shall be
managed by and under the direction of the Board of Directors. Except as
otherwise provided by law and except as hereinafter otherwise provided for
filling vacancies, the directors of the Corporation shall be elected by the
stockholders entitled to vote at the annual meeting of the stockholders, to
hold office until the expiration of the term for which he is elected and
until his successor has been elected and qualified or until his earlier
resignation or removal.
SECTION 2. An annual meeting of the Board of Directors shall be
held after each annual election of directors. If such election occurs at
an annual meeting of stockholders, the annual meeting of the Board of
Directors shall take place as soon after such written consent is duly filed
with the Corporation as is practicable.
SECTION 3. Special meetings of the Board of Directors shall be
called at any time by the Secretary at the direction of the Chairman of the
Board, the President or a majority of the directors.
SECTION 4. Written notice of each special meeting of the Board
of Directors shall be given to each member thereof specifying the time and
place of the meeting. Notice shall be given by first class mail, telegram,
radiogram, telex or personal service. At least forty-eight hours' notice
must be given by telegram, radiogram, telex or personal service when less
than six days' notice is given. If notice to a director is given by mail,
the notice shall be directed to him at the address designated by him for
the purpose, or, if none is designated, at his last known address, and
shall be deemed given when deposited, postage prepaid, in a post office or
official depository of any nation. If notice to a director is given by
telegram, radiogram or telex, it shall be directed to his last known
address and, in the case of notice by telegram or radiogram, shall be
deemed given when received by the communications carrier. Notice by telex
shall be deemed given when transmitted. A written waiver of notice signed
by the director entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a director at
a meeting shall constitute a waiver of notice of such meeting, except when
the director attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
directors need be specified in any written waiver of notice.
SECTION 5. Except for meeting held after an annual meeting of
stockholders, meetings of the Board of Directors shall be held at such
place as may be specified in the notice thereof, or, if no place is
specified in the notice, at such other place or places as the Board of
Directors may from time to time fix thereof.
SECTION 6. Members of the Board of Directors may participate in
a meeting of the Board by means of conference telephone or similar
communications equipment by means of which all person participating in the
meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
SECTION 7. A majority of the total number of directors shall be
necessary to constitute a quorum for the transaction of business and the
act of the majority of the directors present at a meeting at which a quorum
is present shall be the act of the Board of Directors. Any regular or
special meeting of the Board at which a quorum is not present may be
adjourned from time to time to some other place or time or both by a
majority of the directors present without any new notice other than an
announcement at the meeting.
SECTION 8. The Board of Directors may, by resolution passed by
a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation.
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. Any such committee, to the extent provided in the
resolution of the Board of Directors and to the extent permitted by law,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers
which may require it; but no such committee shall have the power or
authority to (i) amend the certificate of incorporation, (ii) adopt an
agreement of merger or consolidation, (iii) recommend to the stockholders
the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, (iv) recommend to the stockholders a
dissolution of the Corporation or a revocation of a dissolution or (v)
amend the by-laws of the Corporation. Such committee or committees shall
have such name or names as may be determined from time to time by
resolution adopted by the Board.
SECTION 9. Any action required or permitted to be taken at any
meeting of the Board of Directors may be taken without a meeting if all
members of the Board consent thereto in writing and the writing is filed
with the minutes of proceedings of the Board.
SECTION 10. The Board of Directors of the Corporation shall
consist of not less than three nor more than fifteen members, the exact
number of Directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the entire Board of Directors.
SECTION 11. Directors may receive compensation for services to
the Corporation in their capacities as directors or otherwise in such
manner and in such amounts as may be fixed from time to time by resolution
of the Board of Directors.
ARTICLE III.
OFFICERS
SECTION 1. The Board of Directors, at the annual meeting
thereof, shall appoint a Chairman of the Board, a President, a Treasurer
and a Secretary. The Board may at any time appoint one or more Vice
Presidents, Assistant Treasurers and Assistant Secretaries. Each such
officer shall serve from time of his appointment until a successor shall be
chosen and qualified or until his earlier resignation or removal. The
compensation of the officers shall be fixed by the Board.
SECTION 2. The Chairman of the Board shall preside at all
meetings of stockholders and of the Board of Directors. He shall be the
chief executive officer and head of the Corporation and, subject to the
Board of Directors, shall have the general control and management of the
business and affairs of the Corporation. He shall vote any shares of stock
or other voting securities owned by the Corporation. In general, he shall
perform all duties incident to the office of the Chairman of the Board and
such other duties as may from time to time be assigned to him by the Board.
SECTION 3. The President shall be the Chief operating officer
of the Corporation and, subject to the Board of Directors and the Chairman
of the Board, shall have control of the operational aspects of the business
and affairs of the Corporation. He shall see that all orders of the
Chairman of the Board are carried into effect, and shall perform all other
duties necessary to his office or properly required of him by the Board or
the Chairman of the Board.
SECTION 4. During the absence or disability of the President,
or during a vacancy in the office of President, the Vice President with the
greatest seniority shall perform the duties and have the powers of the
President.
SECTION 5. The Secretary shall have custody of the seal of the
Corporation. He shall keep the minutes of the Board of Directors, and of
the stockholders, and shall attend to the giving and serving of all notices
of the Corporation. He shall have charge of the certificate book and such
other books and papers as the Board may direct; and he shall perform such
other duties as may be incidental to his office or as may be assigned to
him by the Board of Directors. He shall also keep or cause to be kept a
stock book, containing the names, alphabetically arranged, of all persons
who are stockholders of the Corporation showing their respective addresses,
the number of shares registered in the name of each, and the dates when
they respectively became the owners of record thereof, and such books shall
be open for inspection as prescribed by the laws of the States of Delaware.
During the absence or disability of the Secretary, or during a vacancy in
the office of Secretary, the Assistant Secretary with the greatest
seniority shall perform the duties and have the powers of the Secretary.
SECTION 6. The Treasurer shall have the care and custody of the
funds and securities of the Corporation and shall deposit the same in the
name of the Corporation in such bank or banks as the Board of Directors may
determine. The Treasurer shall also have the care and custody of the
Corporation's books of account and he shall be responsible for the general
and cost accounting functions of the Corporation. During the absence or
disability of the Treasurer, or during a vacancy in the office of
Treasurer, the Assistant Treasurer with the greatest seniority shall
perform the duties and have the powers of the Treasurer.
ARTICLE IV.
RESIGNATIONS, REMOVALS, VACANCIES AND
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. Any director or officer may resign his office at any
time, such resignation to be made in writing and to take effect from the
time of its receipt by the Corporation, unless some future time be fixed in
the resignation and in that case from that time. The acceptance of a
resignation shall not be required to make it effective. Nothing herein
shall be deemed to affect any contractual rights of the Corporation.
SECTION 2. Any officer may be removed with or without cause at
any time by the Board of Directors. Any employee of the Corporation may be
removed at any time by the Board of Directors or by an officer. The
removal of an officer or employee without cause shall be without prejudice
to his contractual rights, if any. The election or appointment of an
officer or employee shall not of itself create contractual rights. Any
director or the entire Board may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors.
SECTION 3. Any vacancy or newly created directorship on the
Board of Directors may be filled by a majority vote of the Directors then
in office, or by majority vote of the stockholders.
SECTION 4. Each former, present or future director, officer,
employee or agent of the Corporation, and each person who may serve at the
request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise
shall be indemnified by the Corporation in all events, to the fullest
extent and in the manner permitted by the laws of the State of Delaware
then in effect.
ARTICLE V.
COMMON STOCK
SECTION 1. Certificates for shares of the common stock of the
Corporation shall be numbered and registered on the books of the
Corporation in the order in which they shall be issued and shall be signed
by the Chairman of the Board, the President or a Vice President, and the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer and sealed with the seal of the Corporation.
SECTION 2. Transfers of shares shall be made upon the books of
the Corporation (i) only by the holder thereof in person or by power of
attorney duly executed and filed with the Corporation, (ii) in accordance
with the Shareholders Agreement, and (iii) upon the surrender to the
Corporation of the certificate or certificates for such shares.
ARTICLE VI
PREFERRED STOCK
SECTION 1. Certificates for shares of the $50 Series A
Preferred Stock and the $50 Series B Preferred Stock of the Corporation
shall be numbered and registered on the books of the Corporation in the
order in which they shall be issued and shall be signed by the Chairman of
the Board or the President or a Vice President, and the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer and sealed
with the seal of the Corporation.
SECTION 2. In accordance with the terms under which such
preferred shares were issued, all of the shares of the $50 Series A
Preferred Stock of the Corporation shall be deemed by the Corporation at
its election expressed by resolution of the Board of Directors but no later
than six (6) calendar months following the close of any fiscal year at
which the Net Worth of the Corporation and any subsidiaries thereof,
computed in accordance with generally accepted accounting principles
consistently applied on a consolidated basis, shall be equal to or exceed
Ten Million Dollars ($10,000,000.00), and subject to there being sufficient
surplus to repurchase all of the Common Shares which the Corporation is
obligated to repurchase pursuant to the Shareholders Agreement.
SECTION 3. In accordance with the terms under which such
preferred shares were issued, the shares of the $50 Series B Preferred
Stock of the Corporation shall be redeemed by the Corporation at the
election of the holder of such shares; provided, however, that such
election may not be exercised at any time prior to the redemption of the
Series A Preferred Stock.
ARTICLE VII.
CHECKS, DRAFTS AND NOTES
The Chairman of the Board or the President or any officers designated
by Resolution of the Board of Directors shall sign all checks and drafts
necessary to be drawn and may accept any drafts drawn upon the Corporation
in due course of business. No check or draft shall be endorsed by the
Corporation and no promissory note, bond, debenture or other evidence of
indebtedness shall be made, signed, issued or endorsed by the Corporation
unless signed by the Chairman or the President or any officer designated
under powers given by a resolution of the Board except that any officer may
endorse for collection or deposit only, expressly stating the purpose of
such endorsements, checks, drafts and promissory notes to the order of the
Corporation.
ARTICLE VIII.
SEAL
The seal of the Corporation shall be in the custody of the
Secretary. It shall be circular in form and shall have engraved upon it
the name of the Corporation arranged in a circle and the words and figures
"Incorporated 1978 Delaware" across the center of the space enclosed.
ARTICLE IX
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation shall not be subject to the provisions of Section
203 of the General Corporation Law of the State of Delaware (Business
Combination with Interested Stockholders). This Article IX shall not be
amended only by the affirmative vote of a majority of the Corporation's
stockholders entitled to vote on such matter.